Sec. 3. Liquidation, reorganization, or recapitalization of a covered financial corporation
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Title 11, United States Code, is amended by inserting before chapter 15 the following: Sec. 1401. Inapplicability of other sections. 1402. Definitions for this chapter. 1403. Commencement of a case concerning a covered financial corporation. 1404. Regulators. 1405. Special transfer of property of the estate. 1406. Special trustee. 1407. Automatic stay; assumed debt. 1408. Treatment of qualified financial contracts and affiliate contracts. 1409. Licenses, permits, and registrations. 1410.
Conversion to chapter 7. 1411. Exemption from securities laws. 1412. Inapplicability of certain avoiding powers. 1413. Consideration of financial stability. Sections 303 and 321(c) do not apply in a case under this chapter. In this chapter, the following definitions shall apply: The term Board means the Board of Governors of the Federal Reserve System. The term bridge company means a newly formed corporation to which property of the estate may be transferred under section 1405(a) and the equity securities of which may be transferred to a special trustee under section 1406(a).
The term capital structure debt means all unsecured debt of the debtor for borrowed money for which the debtor is the primary obligor, other than a qualified financial contract and other than debt secured by a lien on property of the estate that is to be transferred to a bridge company pursuant to an order of the court under section 1405(a). The term contractual right means a contractual right of a kind described in section 555, 556, 559, 560, or 561. The term qualified financial contract means any contract of a kind defined in paragraph (25), (38A), (47), or
(53B)of section 101, section 741(7), or paragraph (4), (5), (11), or
(13)of section 761. The term special trustee means a trustee appointed under section 1406(a)(2)(A). The term trustee means a person who is— appointed or elected under section 1104; and qualified under section 322 to serve as trustee in the case or, in the absence of such person, the debtor in possession. A case under this chapter may be commenced by the filing of a petition with the court by an entity that may be a debtor under section 301 if the entity states to the best of its knowledge, under penalty of perjury, in the petition that the entity is a covered financial corporation. The commencement of a case under subsection
(a)constitutes an order for relief under this chapter. The members of the board of directors (or body performing similar functions) of a covered financial corporation shall not be liable to shareholders, creditors or other parties in interest for— a good faith filing of a case under this chapter; or for any reasonable action taken, before or after the date on which a case is commenced under this chapter, in good faith in contemplation of or in connection with such a filing or a transfer under section 1405 or section 1406. Counsel to the entity that may be a debtor shall provide, to the greatest extent practicable, sufficient confidential notice to the Director of the Administrative Office of the United States Courts and the chief judge of the court of appeals embracing the district in which the case is pending regarding the potential commencement of a case under this chapter without disclosing the identity of the potential debtor to allow the Director and chief judge to designate and ensure the ready availability of 1 of the bankruptcy judges designated under section 298(b)(1) of title 28 to be available to preside over the case. The Board, the Securities and Exchange Commission, the Comptroller of the Currency, and the Federal Deposit Insurance Corporation may raise and may appear and be heard on any issue in any case or proceeding under this chapter. On request of the trustee, and after notice and hearing not less than 24 hours after the order for relief, the court may order a transfer under this section of property of the estate, and the assignment of debt, executory contracts, unexpired leases, qualified financial contracts, and agreements of the debtor, to a bridge company. Except as provided under this section, the provisions of sections 363 and 365 shall apply to a transfer and assignment under this section. Upon the entry of an order approving a transfer under this section, any property transferred, and any debt, executory contract, unexpired leases, qualified financial contract, or agreement assigned under such order shall no longer be property of the estate. Unless the court orders otherwise, notice of a request for an order under subsection
(a)shall consist of electronic or telephonic notice of not less than 24 hours to— the holders of the 20 largest secured claims against the debtor; the holders of the 20 largest unsecured claims against the debtor; counterparties to any debt, executory contract, unexpired lease, qualified financial contract, or agreement requested to be transferred under this section; the Board; the Federal Deposit Insurance Corporation; the Secretary of the Treasury; the Comptroller of the Currency; the Securities and Exchange Commission; the United States trustee or bankruptcy administrator; and each primary financial regulatory agency (as defined in section 2(12) of the Dodd-Frank Wall Street Reform and Consumer Protection Act ( 12 U.S.C. 5301(12) )) with respect to any affiliate the equity securities of which are proposed to be transferred under this section. The court may not order a transfer under this section unless the court determines, based upon a preponderance of the evidence, that— the transfer under this section is necessary to prevent serious adverse effects on financial stability in the United States; the transfer does not provide for the assumption of any capital structure debt by the bridge company; the transfer does not provide for the transfer to the bridge company of any property of the estate that is subject to a lien securing a debt, executory contract, unexpired lease, or agreement of the debtor unless— the bridge company assumes such debt, executory contract, unexpired lease, or agreement, including any claims arising in respect thereof that would not be allowed secured claims under section 506(a)(1), and after giving effect to such transfer, such property remains subject to the lien securing such debt, executory contract, unexpired lease, or agreement; and the court has determined that assumption of such debt, executory contract, unexpired lease, or agreement by the bridge company is in the best interest of the estate; or such property is being transferred to the bridge company in accordance with the provisions of section 363; the transfer does not provide for the assumption by the bridge company of any debt, executory contract, unexpired lease, or agreement of the debtor secured by a lien on property in which the estate has an interest unless the transfer provides for such property to be transferred to the bridge company in accordance with paragraph (3)(A) of this subsection; the transfer does not provide for the transfer of the equity of the debtor; the debtor has demonstrated that the bridge company is not likely to fail to meet the obligations of any debt, executory contract, qualified financial contract, unexpired lease, or other agreement assumed and assigned to the bridge company; the transfer provides for the transfer to a special trustee all of the equity securities in the bridge company and appointment of a special trustee in accordance with section 1406; after giving effect to the transfer, adequate provision has been made for the payment of the fees, costs, and expenses of the estate and special trustee; and the bridge company will have governing documents, and initial directors and senior officers, that are in the best interest of creditors and the estate. Immediately before a transfer under this section, the bridge company that is the recipient of the transfer shall— not have any property, debts, executory contracts, unexpired leases, qualified financial contracts, or agreements, other than any property acquired or debts, executory contracts, unexpired leases, qualified financial contracts, or agreements assumed when acting as a transferee of a transfer under this section; and have equity securities that are property of the estate, which may be sold or distributed in accordance with this title. An order approving a transfer under section 1405 shall require the trustee to transfer to a special trustee all of the equity securities in the bridge company that is the recipient of a transfer under section 1405 to hold in trust for the sole benefit of the estate subject to satisfaction of the special trustee’s fees, costs, and expenses. The trust of which the special trustee is the trustee shall be a newly formed trust governed by a trust agreement approved by the court as in the best interests of the estate, and shall exist for the sole purpose of holding and administering, and shall be permitted to dispose of, the equity securities of the bridge company in accordance with the trust agreement. A special trustee shall be qualified and independent and shall be appointed by the court. In connection with the hearing to approve a transfer under section 1405, the trustee may propose to the court a person to serve as special trustee, if the trustee confirms to the court that the Board has been consulted regarding the identity of the proposed special trustee and advises the court of the results of such consultation. The trust agreement governing a trust formed under subsection (a)(1) shall provide— for the payment of the fees, costs, expenses, and indemnities of the special trustee from the assets of the debtor’s estate; that the special trustee provide— quarterly reporting to the estate, which shall be filed with the court; and information about the bridge company reasonably requested by a party in interest to prepare a disclosure statement for a plan providing for distribution of any securities of the bridge company if such information is necessary to prepare such disclosure statement; that for as long as the equity securities of the bridge company are held by the trust, the special trustee shall file a notice with the court in connection with— any change in a director or senior officer of the bridge company; any modification to the governing documents of the bridge company; or any material corporate action of the bridge company, including— recapitalization; a material borrowing; termination of an intercompany debt or guarantee; a transfer of a substantial portion of the assets of the bridge company; or the issuance or sale of any securities of the bridge company; that any sale of any equity securities of the bridge company shall not be consummated until the special trustee consults with the Federal Deposit Insurance Corporation and the Board regarding such sale and discloses the results of such consultation with the court; that, subject to reserves for payments permitted under paragraph
(1)provided for in the trust agreement, the proceeds of the sale of any equity securities of the bridge company by the special trustee be held in trust for the benefit of or transferred to the estate; the process and guidelines for the replacement of the special trustee; and that the property held in trust by the special trustee is subject to distribution in accordance with subsection (c). The special trustee shall distribute the assets held in trust— if the court confirms a plan in the case, in accordance with the plan on the effective date of the plan; or if the case is converted to a case under chapter 7 under section 1410. As soon as practicable after a final distribution under paragraph (1), the office of the special trustee shall terminate, except as may be necessary to wind up and conclude the business and financial affairs of the trust. After a transfer to the special trustee under this section, the special trustee shall be subject only to applicable nonbankruptcy law, and the actions and conduct of the special trustee shall no longer be subject to approval by the court in the case under this chapter. A petition filed under section 1403 operates as a stay, applicable to all entities, of the acceleration, termination, or modification of any debt, contract, lease, or agreement of the kind described in paragraph (2), or of any right or obligation under any such debt, contract, lease, or agreement, solely because of— a default by the debtor under any such debt, contract, lease, or agreement; or a provision in such debt, contract, lease, or agreement, or in applicable nonbankruptcy law, that is conditioned on— the insolvency or financial condition of the debtor at any time before the closing of the case; the commencement of a case under this title concerning the debtor; the appointment of or taking possession by a trustee in a case under this title concerning the debtor or by a custodian before the commencement of the case; or a credit rating agency rating, or absence or withdrawal of a credit rating agency rating of— the debtor at any time after the commencement of the case; an affiliate during the 48 hours after the commencement of the case; the bridge company while the trustee or the special trustee is a direct or indirect beneficial holder of more than 50 percent of the equity securities of— the bridge company; or an affiliate, if all of the direct or indirect interests in the affiliate that are property of the estate are transferred under section 1406; or an affiliate while the trustee or the special trustee is a direct or indirect beneficial holder of more than 50 percent of the equity securities of— the bridge company; or the affiliate, if all of the direct or indirect interests in the affiliate that are property of the estate are transferred under section 1405. A debt, contract, lease, or agreement described in this paragraph— is— any debt, executory contract, or unexpired lease of the debtor; any agreement under which the debtor issued or is obligated for debt; any debt, executory contract, or unexpired lease of an affiliate; and any agreement under which an affiliate issued or is obligated for debt; and does not include capital structure debt or qualified financial contracts. A stay under this subsection terminates— as to the debtor, upon the earliest of— 48 hours after the commencement of the case; assumption of the debt, contract, lease, or agreement by the bridge company under an order authorizing a transfer under section 1405; a final order of the court denying the request for a transfer of the debt, contract, lease, or agreement under section 1405; or the time the case is dismissed; and as to an affiliate, upon the earliest of— 48 hours after the commencement of the case, if the court has not ordered a transfer under section 1405; the entry of an order authorizing a transfer under section 1405 in which the direct or indirect interests in the affiliate that are property of the estate are not transferred under section 1405; a final order of the court denying the request for a transfer under section 1405; or the time the case is dismissed. Sections (d), (e), (f), and
(g)of section 362 apply to a stay under this subsection. A debt, executory contract, unexpired lease of the debtor, or any other agreement described in subsection (a)(2), may be assumed by a bridge company in a transfer under section 1405 notwithstanding any provision in an agreement or in applicable nonbankruptcy law that— prohibits, restricts, or conditions the assignment of the debt, contract, lease, or agreement; or accelerates, terminates, or modifies, or permits a party other than the debtor to accelerate, terminate, or modify, the debt, contract, lease, or agreement on account of— the assignment of the debt, contract, lease, or agreement; or a change in control of any party to the debt, contract, lease, or agreement. A debt, contract, lease, or agreement of the kind described in subsection (a)(2) may not be accelerated, terminated, or modified, and any right or obligation under such debt, contract, lease, or agreement may not be accelerated, terminated, or modified, as to the bridge company solely because of a provision in the debt, contract, lease, or agreement or in applicable nonbankruptcy law— of the kind described in subsection (a)(1)(B) as applied to the debtor; that prohibits, restricts, or conditions the assignment of the debt, contract, lease, or agreement; or that accelerates, terminates, or modifies, or permits a party other than the debtor to accelerate, terminate, or modify, the debt, contract, lease or agreement, on account of— the assignment of the debt, contract, lease, or agreement; or a change in control of any party to the debt, contract, lease, or agreement. If there has been a default by the debtor under a provision other than the kind described in paragraph
(1)in a debt, contract, lease, or agreement of the kind described in subsection (a)(2), the bridge company may assume such debt, contract, lease, or agreement only if the bridge company— cures, or provides adequate assurance in connection with a transfer under section 1405 that the bridge company will promptly cure, the default; compensates, or provides adequate assurance in connection with a transfer under section 1405 that the bridge company will promptly compensate, a party other than the debtor to the debt, contract, lease, or agreement, for any actual pecuniary loss to the party resulting from the default; and provides adequate assurance in connection with a transfer under section 1405 of future performance under the debt, contract, lease, or agreement, as determined by the court under section 1405(c)(4). Notwithstanding sections 362(b)(6), 362(b)(7), 362(b)(17), 362(b)(27), 362(o), 555, 556, 559, 560, and 561, a petition filed under section 1403 operates as a stay, during the period specified in section 1407(a)(3)(A), applicable to all entities, of the exercise of a contractual right— to cause the acceleration, termination, modification, or liquidation of a qualified financial contract of the debtor or an affiliate; to offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with a qualified financial contract of the debtor or an affiliate; or under any security agreement or arrangement or other credit enhancement forming a part of or related to a qualified financial contract of the debtor or an affiliate. During the period specified in section 1407(a)(3)(A), the trustee or the affiliate shall perform all payment and delivery obligations under a qualified financial contract of the debtor or the affiliate, as the case may be, that become due after the commencement of the case. The stay provided under subsection
(a)terminates as to a qualified financial contract of the debtor or an affiliate immediately upon the failure of the trustee or the affiliate, as the case may be, to perform any such obligation during such period. Any failure by a counterparty to any qualified financial contract of the debtor or any affiliate to perform any payment or delivery obligation under such qualified financial contract, including during the pendency of the stay provided under subsection (a), shall constitute a breach of such qualified financial contract by the counterparty. Notwithstanding any provision of subsection 1407(b) or applicable nonbankruptcy law, subject to the court’s approval, a qualified financial contract between an entity and the debtor may be assigned to or assumed by the bridge company in a transfer under section 1405 only if— all qualified financial contracts between the entity and the debtor are assigned to and assumed by the bridge company in the transfer under section 1405; all claims of the entity against the debtor under any qualified financial contract between the entity and the debtor (other than any claim that, under the terms of the qualified financial contract, is subordinated to the claims of general unsecured creditors) are assigned to and assumed by the bridge company; all claims of the debtor against the entity under any qualified financial contract between the entity and the debtor are assigned to and assumed by the bridge company; and all property securing or any other credit enhancement furnished by the debtor for any qualified financial contract described in paragraph
(1)or any claim described in paragraph
(2)or
(3)under any qualified financial contract between the entity and the debtor is assigned to and assumed by the bridge company. Notwithstanding any provision of a qualified financial contract or of applicable nonbankruptcy law, a qualified financial contract of the debtor that is assumed by or assigned to the bridge company in a transfer under section 1405 may not be accelerated, terminated, modified, or liquidated after the entry of the order approving a transfer under section 1405, and any right or obligation under the qualified financial contract may not be accelerated, terminated, or modified, after the entry of the order approving a transfer under section 1405 solely because of a provision of the kind described in section 1407(c)(1), other than a provision of the kind described in section 1407(b) that occurs after property of the estate no longer includes a direct beneficial interest or an indirect beneficial interest through the special trustee, in more than 50 percent of the equity securities of the bridge company. Notwithstanding any provision in any agreement or in applicable nonbankruptcy law, an agreement (including an executory contract, unexpired lease, qualified financial contract, or an agreement under which the affiliate issued or is obligated for debt) of an affiliate that is assumed by or assigned to the bridge company in a transfer under section 1405, and any right or obligation under such agreement, may not be accelerated, terminated, modified, or liquidated after the entry of the order approving a transfer under section 1405 solely because of a provision of the kind described in section 1407(c)(1), other than a provision of the kind described in section 1407(b) that occurs after the bridge company is no longer a direct or indirect beneficial holder of more than 50 percent of the equity securities of the affiliate at any time after the commencement of the case if— all direct or indirect interests in the affiliate that are property of the estate are transferred under section 1405 to the bridge company within the period specified in subsection (a); the bridge company assumes— any guarantee or other credit enhancement issued by the debtor relating to the agreement of the affiliate; and any right of setoff, netting arrangement, or debt of the debtor that directly arises out of or directly relates to the guarantee or credit enhancement; and any property of the estate that directly serves as collateral for the guarantee or credit enhancement is transferred to the bridge company. Notwithstanding any otherwise applicable nonbankruptcy law, if a request is made under section 1405 for a transfer of property of the estate, any Federal, State, or local license, permit, or registration that the debtor or an affiliate had immediately before the commencement of the case and that is proposed to be transferred under section 1405 may not be accelerated, terminated, or modified at any time after the request solely on account of— the insolvency or financial condition of the debtor at any time before the closing of the case; the commencement of a case under this title concerning the debtor; the appointment of or taking possession by a trustee in a case under this title concerning the debtor or by a custodian before the commencement of the case; or a transfer under section 1405. Notwithstanding any otherwise applicable nonbankruptcy law, any Federal, State, or local license, permit, or registration that the debtor had immediately before the commencement of the case that is included in a transfer under section 1405 shall be valid and all rights and obligations thereunder shall vest in the bridge company. Notwithstanding section 109(b), a court may convert a case under this chapter to a case under chapter 7 if— a transfer described in section 1405 has taken place; the court has ordered the appointment of a special trustee under section 1406; and the court finds, after providing notice and conducting a hearing, that the conversion of the case is in the best interests of the creditors and the estate. For purposes of section 1145, a security of the bridge company shall be deemed to be a security of a successor to the debtor under a plan if the court approves the disclosure statement for the plan as providing adequate information (as defined in section 1125(a)) about the bridge company and the security. A transfer made or an obligation incurred by the debtor to an affiliate prior to or after the commencement of the case, including any obligation released by the debtor or the estate to or for the benefit of an affiliate, in contemplation of or in connection with a transfer under section 1405, is not avoidable under section 544, 547, 548(a)(1)(B), or 549, or under any similar nonbankruptcy law. The court may consider the effect that any decision in connection with this chapter may have on financial stability in the United States. . The table of chapters for title 11, United States Code, is amended by inserting after the item relating to chapter 13 the following: 14. Liquidation, reorganization, or recapitalization of a covered financial corporation 1401 .
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Sec. 3
Liquidation, reorganization, or recapitalization of a covered financial corporation
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