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Because the Conveying Subsidiaries were insolvent even before the July 31 Transaction and received no value from that transaction, the court determined that the liabilities and liens could not be enforced to any extent.

However, the court went a step further and in opined that even if the Conveying Subsidiaries had become insolvent only as a result of the July 31 Transaction, the savings clauses are unenforceable under section 541(c)(1)(B), which provides that an interest of the debtor in property becomes property of the estate, notwithstanding any “provision in an agreement” that is “conditioned on the insolvency or financial condition of the debtor” that “effects or gives an option to effect a forfeiture, modification or termination of the debtor’s interest in property.” The TOUSA court also determined that the savings clauses were unenforceable because they were an impermissible effort to contract around the core provisions of the Bankruptcy Code, and that the savings clauses before the court were inherently indefinite as a matter of contract law.

Nevertheless, the Conveying Subsidiaries incurred liabilities and granted liens on their assets to resolve the liabilities of their parent and sister companies.

TOUSA and the Conveying Subsidiaries filed their chapter 11 petitions on January 29, 2008, six months after the loan closed, and are currently winding-down their operations and liquidating in Chapter 11.

Recently, other courts have relied more heavily on contemporaneous market evidence than on experts.

Among the market evidence relied on by the TOUSA court were the downturn in the housing industry that began in early 2006; TOUSA’s early recognition of the severity of the downturn; how the downturn began to negatively impact TOUSA’s operating results and financial condition as early as 2006; downgrades by ratings agencies and negative reports by industry experts; the fact that TOUSA’s stock price fell from a high of during 2006 to below by April 2007, and that its bonds traded at discounts of 30% and 40% to face value in May 2007; management’s own internal negative assessments, which the administrative agent for the new lenders failed to uncover in its due diligence; the collapse in June 2007 of two Bear Stearns hedge funds that were heavily invested in the subprime mortgage market, exacerbating an already weak credit market; doubts expressed internally by the administrative agent, whom the court viewed as too focused on the fees it stood to earn on the deal; and problems that arose during the loan syndication effort which were only overcome due to significant pricing incentives that raised TOUSA’s borrowing costs.

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In order to fund the settlement, on July 31, 2007, TOUSA and many of its subsidiaries (the “Conveying Subsidiaries”) collectively borrowed 0 million from new first and second lien term lenders, and the Conveying Subsidiaries secured that debt by granting liens on their previously unencumbered assets to the new lenders.The lessons senior lenders should draw from TOUSA to mitigate their risks include: (1) be wary of upstream (or cross-stream) guarantees and pledges of collateral; (2) conduct thorough due diligence especially on the financial condition of each of your prospective borrowers to be assured that each borrower passes all three insolvency tests; (3) focus on the financial condition of your borrower on a stand-alone basis, and avoid reliance on consolidated financial statements; (4) where multiple corporate affiliates will be parties to the credit, make sure each borrower, guarantor and pledgor receives value that is reasonably equivalent to the debt incurred and collateral pledged on a stand-alone basis, without counting value received by corporate affiliates; (5) be mindful of any personal incentives that borrower’s management or advisors may have, especially increased compensation contingent upon a closing; (6) assess the impact your loan will have on other creditors; and (7) address problems that arise before the loan closes, rather than ignoring red flags as the TOUSA court found the lenders’ agent did.The TOUSA court’s conclusion that the savings clauses would not be enforceable even if the Conveying Subsidiaries had become insolvent only as a result of the July 31 Transaction is troubling, but it is that may not be followed by other courts.Nevertheless, many of the problems encountered by the senior lenders in TOUSA were easily foreseeable and may be the product of lax lending standards during the bubble years.TOUSA and its subsidiaries were engaged in the business of designing, building and marketing detached single-family residences, town homes and condominiums.

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