Ordinance of the Swiss Financial Market Supervisory Authority on the Insolvency of Banks and Securities Dealers

This Or­din­ance defines re­struc­tur­ing pro­ceed­ings and bank­ruptcy pro­ceed­ings un­der Art­icles 28-37g BankA.

¹This Or­din­ance ap­plies to the fol­low­ing, re­ferred to be­low as bank­ing in­sti­tu­tions and per­sons:

a.

banks un­der the BankA;

b.

se­cur­it­ies deal­ers un­der the SESTA;

c.

cent­ral mort­gage bond in­sti­tu­tions un­der the MBA.

²The pro­vi­sions on bank re­struc­tur­ing (Arts. 40-57) do not ap­ply to in­di­vidu­als and leg­al en­tit­ies op­er­at­ing without the re­quis­ite li­cence. FINMA may de­clare them ap­plic­able where there is suf­fi­cient pub­lic in­terest.

¹If bank­ruptcy pro­ceed­ings or re­struc­tur­ing pro­ceed­ings are opened, they cov­er all real­is­able as­sets in a bank's pos­ses­sion at the time in ques­tion, re­gard­less of wheth­er they are loc­ated in Switzer­land or abroad.

²All Swiss and for­eign cred­it­ors of the bank and its for­eign branches are equally en­titled to par­ti­cip­ate in bank­ruptcy pro­ceed­ings or re­struc­tur­ing pro­ceed­ings opened in Switzer­land and en­joy the same priv­ileges.

³The as­sets of a branch of a for­eign bank op­er­at­ing in Switzer­land in­clude all as­sets in Switzer­land and abroad that are con­sti­tuted by parties act­ing on be­half of that branch.

¹Pub­lic no­tices are pub­lished in the Swiss Of­fi­cial Gaz­ette of Com­merce and on the FINMA web­site.

²Com­mu­nic­a­tions are sent dir­ectly to cred­it­ors whose name and ad­dress are known. If it sim­pli­fies the pro­ceed­ings, FINMA may re­quire cred­it­ors dom­i­ciled or resid­ing abroad to ap­point an au­thor­ised per­son for ser­vice in Switzer­land. For reas­ons of ur­gency or to sim­pli­fy the pro­ced­ure, dir­ect com­mu­nic­a­tions may be dis­pensed with.

³With re­gard to dead­lines and the leg­al con­sequences as­so­ci­ated with a pub­lic no­tice, pub­lic­a­tion in the Swiss Of­fi­cial Gaz­ette of Com­merce is the de­cid­ing factor.

¹Any per­son mak­ing a cred­ible claim that their fin­an­cial in­terests are dir­ectly af­fected by the re­struc­tur­ing or the bank­ruptcy is en­titled to in­spect doc­u­ments re­lat­ing to the re­struc­tur­ing or the bank­ruptcy, al­though pro­fes­sion­al con­fid­en­ti­al­ity in ac­cord­ance with Art­icle 47 BankA and Art­icle 43 SESTA must be ob­served wherever pos­sible.

²The right to in­spect doc­u­ments may be re­stric­ted to spe­cif­ic stages of the pro­ceed­ings, or it may be lim­ited or re­fused where op­pos­ing in­terests take pre­ced­ence.

³Any per­son gran­ted the right to in­spect doc­u­ments may only use the in­form­a­tion re­ceived through in­spect­ing doc­u­ments to pro­tect their own im­me­di­ate fin­an­cial in­terests.

⁴The right to in­spect doc­u­ments may be made de­pend­ent on a de­clar­a­tion which states the in­form­a­tion in­spec­ted may only be used to pro­tect the in­di­vidu­al's own im­me­di­ate fin­an­cial in­terests. In the event of any fail­ure to com­ply, ref­er­ence may be made in ad­vance to the crim­in­al pen­al­ties un­der Art­icle 48 of the Fin­an­cial Mar­ket Su­per­vi­sion Act of 22 June 2007¹ and Art­icle 292 of the Swiss Crim­in­al Code².

⁵The re­struc­tur­ing agent or bank­ruptcy ad­min­is­trat­or and, fol­low­ing com­ple­tion of the re­struc­tur­ing pro­ceed­ings or bank­ruptcy pro­ceed­ings, FINMA shall de­cide on the right to in­spect doc­u­ments.

¹Any per­son whose in­terests are ad­versely af­fected by a de­cision, an act or an omis­sion by a per­son who was en­trus­ted with tasks in ac­cord­ance with this Or­din­ance may make a com­plaint to FINMA.

²Any de­cisions made by these per­sons are not re­garded as rul­ings and the com­plain­ants are not deemed to be parties with­in the mean­ing of the Fed­er­al Act of 20 Decem­ber 1968¹ on Ad­min­is­trat­ive Pro­ced­ure.

³FINMA shall as­sess the facts re­por­ted, take the ne­ces­sary meas­ures and is­sue a rul­ing if re­quired.

¹The in­solv­ency ven­ue is the loc­a­tion of the re­gistered of­fice of the bank or the Swiss branch of a for­eign bank.

²If a bank has more than one re­gistered of­fice or a for­eign bank has more than one Swiss branch, there will only be one in­solv­ency ven­ue. This ven­ue shall be de­term­ined by FINMA.

³In the case of in­di­vidu­als, the in­solv­ency ven­ue is the per­son's busi­ness dom­i­cile at the time the bank­ruptcy pro­ceed­ings or re­struc­tur­ing pro­ceed­ings are opened.

The bank's claims and li­ab­il­it­ies are deemed to be book claims and li­ab­il­it­ies where the bank's books are kept prop­erly and the bank­ruptcy li­quid­at­or is genu­inely able to dis­cern that the claim or li­ab­il­ity ex­ists and the ex­tent to which they ex­ist.

FINMA and the re­struc­tur­ing agent or bank­ruptcy li­quid­at­or shall co­ordin­ate their ac­tions as far as pos­sible with au­thor­it­ies and gov­ern­ing bod­ies in Switzer­land and abroad.

¹Where FINMA re­cog­nises a for­eign bank­ruptcy de­cree or a for­eign in­solv­ency meas­ure in ac­cord­ance with Art­icle 37g BankA, the pro­vi­sions of this Or­din­ance ap­ply to the as­sets loc­ated in Switzer­land.

²Even if there are no re­cip­roc­al rights, FINMA may meet re­cog­ni­tion re­quests where this is in the in­terests of the cred­it­ors af­fected.

³It shall de­term­ine one in­solv­ency ven­ue in Switzer­land and the priv­ileged cred­it­ors un­der Art­icle 37g para­graph 4 BankA.

⁴It shall give pub­lic no­tice of the re­cog­ni­tion and the circle of cred­it­ors.

¹FINMA shall in­form the bank of the bank­ruptcy or­der and give pub­lic no­tice of it to­geth­er with no­tice to cred­it­ors.

²Pub­lic no­tice shall be giv­en of the fol­low­ing de­tails in par­tic­u­lar:

a.

the bank's name as well as its re­gistered of­fice and branches;

b.

the date and time of the open­ing of bank­ruptcy pro­ceed­ings;

c.

the bank­ruptcy ven­ue;

d.

the name and ad­dress of the bank­ruptcy li­quid­at­or;

e.

a no­tice to cred­it­ors and per­sons who have claims to as­sets held with the bank in­struct­ing them to re­gister their claims, to­geth­er with proof of the same, with the bank­ruptcy li­quid­at­or with­in a spe­cif­ic dead­line;

f.

a ref­er­ence to claims that qual­i­fy as re­gistered un­der Art­icle 26;

g.

a ref­er­ence to the sur­render and re­port­ing ob­lig­a­tions un­der Art­icles 17-19.

³The bank­ruptcy li­quid­at­or may provide known cred­it­ors with a copy of the no­tice.

¹FINMA shall is­sue a rul­ing ap­point­ing a bank­ruptcy li­quid­at­or un­less it is to carry out the li­quid­at­or's du­ties it­self.

²Where FINMA ap­points a bank­ruptcy li­quid­at­or, it must en­sure when mak­ing its choice that the li­quid­at­or has suf­fi­cient time and ex­pert­ise to per­form the man­date di­li­gently, ef­fi­ciently and ef­fect­ively and is not sub­ject to any con­flict of in­terests that might com­prom­ise his or her abil­ity to per­form the man­date.

³It spe­cifies the de­tails of the task, in par­tic­u­lar re­gard­ing the bank­ruptcy li­quid­at­or's costs, re­port­ing and con­trol.

The bank­ruptcy li­quid­at­or con­ducts the pro­ceed­ings. In par­tic­u­lar, he or she must:

a.

cre­ate the tech­nic­al and ad­min­is­trat­ive con­di­tions for con­duct­ing the bank­ruptcy;

b.

se­cure and real­ise the bank­ruptcy as­sets;

c.

put in place the ex­ec­ut­ive man­age­ment re­quired for the bank­ruptcy pro­ceed­ings;

d.

rep­res­ent the bank­ruptcy as­sets and oth­er au­thor­it­ies be­fore the courts;

e.

en­sure, in con­junc­tion with the agency of the de­pos­it pro­tec­tion scheme, that the de­pos­its pro­tec­ted un­der Art­icle 37h BankA are iden­ti­fied and paid out.

¹If the bank­ruptcy li­quid­at­or deems it ne­ces­sary to con­vene an as­sembly of cred­it­ors, he or she shall sub­mit a re­quest to this ef­fect to FINMA. The lat­ter shall stip­u­late the powers of the as­sembly of cred­it­ors as well as the quor­um and vot­ing ma­jor­ity re­quire­ments.

²All cred­it­ors are en­titled to at­tend or be rep­res­en­ted at the as­sembly. In cases of doubt, the bank­ruptcy li­quid­at­or de­cides on ad­mis­sion.

³The bank­ruptcy li­quid­at­or chairs the hear­ing and re­ports on the bank's as­sets and the pro­gress of the pro­ceed­ings.

⁴The cred­it­ors may pass res­ol­u­tions by cir­cu­lar vote. Cred­it­ors who do not ex­pressly re­ject the bank­ruptcy li­quid­at­or's pro­pos­al with­in the spe­cified dead­line are re­garded as be­ing in agree­ment with it.

¹FINMA de­cides, at the re­quest of the bank­ruptcy li­quid­at­or, on the ap­point­ment, com­pos­i­tion, tasks and powers of a com­mit­tee of cred­it­ors.

²If the agency of the de­pos­it pro­tec­tion scheme has paid out a sub­stan­tial amount of priv­ileged as­sets un­der Art­icle 37h BankA, it must nom­in­ate a per­son to rep­res­ent its in­terests on the com­mit­tee of cred­it­ors.

³FINMA de­term­ines the chair, the vot­ing pro­ced­ure and the com­pens­a­tion of the in­di­vidu­al mem­bers.

¹The bank­ruptcy li­quid­at­or draws up an in­vent­ory of the bank­ruptcy as­sets.

²The in­vent­ory is drawn up in ac­cord­ance with Art­icles 221 to 229 of the Fed­er­al Act of 11 April 1889¹ on Debt En­force­ment and Bank­ruptcy (DEBA), un­less this Or­din­ance provides oth­er­wise.

³The as­sets held in cus­tody that are to be se­greg­ated un­der Art­icle 37d BankA must be re­cor­ded in the in­vent­ory at their mar­ket value at the time the bank­ruptcy pro­ceed­ings were opened. The in­vent­ory shall refer to any claims on the bank's part against de­pos­it­ors that con­flict with se­greg­a­tion.

⁴The bank­ruptcy li­quid­at­or shall sub­mit a re­quest to FINMA for the meas­ures re­quired to se­cure the bank­ruptcy as­sets.

⁵He or she shall for­ward the in­vent­ory to the banker or a per­son se­lec­ted by the bank's own­ers to act as the bank's agent. This per­son must con­firm that the in­vent­ory is com­plete and cor­rect. Their con­firm­a­tion must be re­cor­ded in the in­vent­ory.

¹The bank's debt­ors and per­sons who have taken pos­ses­sion of the bank's as­sets through a pledge or for any oth­er reas­on must re­port to the bank­ruptcy li­quid­at­or with­in the dead­line spe­cified in Art­icle 11 para­graph 2 let­ter e and re­lease the as­sets to him or her.

²Claims for which the right to off­set has been as­ser­ted must still be re­por­ted.

³Any ex­ist­ing pre-empt­ive right lapses in the event of an un­jus­ti­fi­able fail­ure to re­port or sur­render.

¹Se­cur­it­ies and oth­er fin­an­cial in­stru­ments serving as col­lat­er­al need not be sur­rendered provided the leg­al con­di­tions for the col­lat­er­al re­cip­i­ent to take re­spons­ib­il­ity for their real­isa­tion are met.

²However, these as­sets must be re­por­ted, to­geth­er with proof of the right to real­ise them, to the bank­ruptcy li­quid­at­or, who shall make a note of them in the in­vent­ory.

³The col­lat­er­al re­cip­i­ent must agree a set­tle­ment with the bank­ruptcy li­quid­at­or over the pro­ceeds from the real­isa­tion of these as­sets. Any sur­plus ac­crues to the bank­ruptcy as­sets.

FINMA may waive the re­quire­ment for debt­ors to be re­por­ted in re­spect of book claims.

¹The bank­ruptcy li­quid­at­or checks the sur­render of as­sets claimed by third parties.

²If he or she be­lieves a sur­render claim to be jus­ti­fied, the bank­ruptcy li­quid­at­or shall of­fer the cred­it­ors the op­por­tun­ity to de­mand as­sign­ment of their right to ob­ject un­der Art­icle 260 paras. 1 and 2 DEBA¹ and set a reas­on­able dead­line for this pur­pose.

³If he or she be­lieves a sur­render claim to be un­jus­ti­fied, or if cred­it­ors have de­man­ded as­sign­ment of their right to ob­ject, the bank­ruptcy li­quid­at­or shall set the per­son mak­ing the claim a dead­line for fil­ing an ac­tion be­fore the court at the bank­ruptcy ven­ue. If the dead­line is al­lowed to ex­pire, the sur­render claim is re­garded as waived.

⁴In the case of as­sign­ment, the ac­tion must be filed against the as­sign­ee cred­it­ors. The bank­ruptcy li­quid­at­or shall provide the third party with the de­tails of the as­sign­ee cred­it­ors when set­ting the dead­line.

¹Claims fall­ing due to the bank­ruptcy as­sets are col­lec­ted by the bank­ruptcy li­quid­at­or, through debt en­force­ment if ne­ces­sary.

²The bank­ruptcy li­quid­at­or shall check claims on the part of the bank­ruptcy as­sets for mov­able as­sets in the cus­tody or co-cus­tody of a third party or land entered in the Land Re­gister in the name of a third party.

³He or she shall also check if leg­al trans­ac­tions un­der Art­icles 285 to 292 DEBA¹ may be con­tested. The dur­a­tion of any pri­or re­struc­tur­ing pro­ceed­ings or any pri­or or­der for pro­tect­ive meas­ures un­der Art­icle 26 para­graph 1 let­ters e-h BankA are not taken in­to ac­count in the dead­lines un­der Art­icles 286 to 288 DEBA.

⁴If the bank­ruptcy li­quid­at­or in­tends to pur­sue a con­tested claim in ac­cord­ance with para­graph 2 or 3 through the ac­tions pro­cess, he or she shall ob­tain ap­prov­al and ap­pro­pri­ate in­struc­tions from FINMA.

⁵If the bank­ruptcy li­quid­at­or does not file a claim, he or she shall give the cred­it­ors the op­por­tun­ity to de­mand as­sign­ment with­in the mean­ing of Art­icle 260 para­graphs 1 and 2 DEBA or to real­ise the claims in ques­tion and any oth­er en­ti­tle­ments un­der Art­icle 31.

⁶If he or she gives the cred­it­ors the op­por­tun­ity to de­mand as­sign­ment, he or she shall set them an ap­pro­pri­ate dead­line.

⁷Real­isa­tion in ac­cord­ance with Art­icle 31 is not per­mit­ted in the case of con­tested claims un­der para­graph 3 or re­spons­ib­il­ity claims un­der Art­icle 39 BankA.

¹The bank­ruptcy li­quid­at­or shall as­sess claims on the part of the bank­ruptcy as­sets that are already the sub­ject of pro­ceed­ings un­der civil and ad­min­is­trat­ive law at the time the bank­ruptcy pro­ceed­ings are opened and sub­mit a re­quest to FINMA for the con­tinu­ation of these pro­ceed­ings.

²If FINMA re­jects a re­quest for con­tinu­ation, the bank­ruptcy li­quid­at­or shall give the cred­it­ors the op­por­tun­ity to de­mand as­sign­ment of their right to con­tin­ue pro­ceed­ings with­in the mean­ing of Art­icle 260 para­graphs 1 and 2 DEBA¹ and set a reas­on­able dead­line for this pur­pose.

¹If the bank­ruptcy as­sets are not suf­fi­cient to con­tin­ue the bank­ruptcy pro­ceed­ings, the bank­ruptcy li­quid­at­or shall sub­mit a re­quest to FINMA to dis­con­tin­ue the pro­ceed­ings.

²FINMA shall con­tin­ue the pro­ceed­ings in ex­cep­tion­al cases, in par­tic­u­lar where there is a spe­cial in­terest in do­ing so, even if the bank­ruptcy as­sets are not suf­fi­cient.

³If FINMA in­tends to dis­con­tin­ue pro­ceed­ings, it shall give pub­lic no­tice of this fact, stat­ing that it will con­tin­ue them if a cred­it­or can provide se­cur­ity for the costs of the pro­ceed­ings not covered by the bank­ruptcy as­sets with­in a spe­cified dead­line. FINMA shall set the dead­line as well as the type and amount of the se­cur­ity.

⁴If the re­quired se­cur­ity is not provided with­in the dead­line, all pledgees may de­mand real­isa­tion of the as­sets pledged in their fa­vour by FINMA with­in a dead­line spe­cified by the lat­ter. FINMA shall in­struct a bank­ruptcy li­quid­at­or to pro­ceed with the real­isa­tion.

⁵In the case of leg­al en­tit­ies, FINMA shall or­der the real­isa­tion of as­sets that are not sub­ject to a de­mand for real­isa­tion from a pledgee with­in the spe­cified dead­line. Any pro­ceeds re­main­ing after the real­isa­tion costs and any en­cum­brances at­tached to in­di­vidu­al as­sets are covered go to the fed­er­al gov­ern­ment once the costs in­curred by FINMA have been covered.

⁶Where bank­ruptcy pro­ceed­ings against in­di­vidu­als are dis­con­tin­ued, the debt en­force­ment pro­ced­ure is gov­erned by Art­icle 230 para­graphs 3 and 4 DEBA¹.

¹Where a joint claim against the bank ex­ists, the group shall be treated as a cred­it­or in its own right, sep­ar­ate from its in­di­vidu­al mem­bers.

²Solid­ary claims shall be at­trib­uted to the solid­ary cred­it­ors in equal shares, provided the bank has no set­ting-off right. The shares are treated as claims on the part of each in­di­vidu­al solid­ary cred­it­or.

¹Un­der Art­icle 37a BankA priv­ileged de­pos­its are:

a.

cli­ent claims arising from bank­ing or se­cur­it­ies deal­ing op­er­a­tions that are booked or should be booked as li­ab­il­it­ies from cli­ent de­pos­its in the bal­ance-sheet;

b.

me­di­um-term notes booked as me­di­um-term notes in the bal­ance sheet that are de­pos­ited at the bank in the de­pos­it­or's name.¹

²With­in the mean­ing of Art­icle 37a BankA priv­ileged de­pos­its are not:

a.

bear­er claims;

b.

me­di­um-term notes that are not held at the bank;

c.

con­trac­tu­al and non-con­trac­tu­al com­pens­a­tion claims such as com­pens­a­tion claims for cus­tody as­sets no longer at the bank's dis­pos­al in ac­cord­ance with Art­icle 37d BankA.

³Claims on the part of bank found­a­tions un­der Art­icle 5 para­graph 2 of the Or­din­ance of 13 Novem­ber 1985² on Tax-de­duct­ible Con­tri­bu­tions to Re­cog­nised Forms of Re­tire­ment Pro­vi­sion and on the part of ves­ted be­ne­fits found­a­tions un­der Art­icle 19 para­graph 2 of the Ves­ted Be­ne­fits Or­din­ance of 3 Oc­to­ber 1994³ qual­i­fy as de­pos­its be­long­ing to the in­di­vidu­al pen­sion fund mem­bers and policy hold­ers. However, these claims shall be paid out to the re­spect­ive bank found­a­tion or ves­ted be­ne­fits found­a­tion.

¹The bank­ruptcy li­quid­at­or shall veri­fy the claims re­gistered and those to be con­sidered by law. He or she may make en­quir­ies per­son­ally and ask the cred­it­ors to provide ad­di­tion­al proof.

²The fol­low­ing claims shall be con­sidered by law:

a.

land re­gister claims, com­plete with ac­crued in­terest; and

b.

book claims un­der Art­icle 8.

³The bank­ruptcy li­quid­at­or ob­tains a state­ment of claims that are not book claims from the banker or from a per­son se­lec­ted by the bank's own­ers to act as the bank's agent.

¹The bank­ruptcy li­quid­at­or shall de­cide wheth­er, to what ex­tent and with what rank claims are re­cog­nised and shall draw up the sched­ule of claims.

²If the bank­ruptcy as­sets in­clude land, he or she shall draw up a sched­ule of the en­cum­brances on that land such as rights of li­en, ease­ments, land charges and pri­or­ity no­tices. This sched­ule shall form part of the sched­ule of claims.

³The bank­ruptcy li­quid­at­or may with FINMA's con­sent draw up a sep­ar­ate sched­ule of claims for claims se­cured by a re­gistered pledge if sys­tem­ic risks can only be re­stric­ted by do­ing so.

¹Claims that are already the sub­ject of pro­ceed­ings un­der civil or ad­min­is­trat­ive law at the time the bank­ruptcy pro­ceed­ings are opened in Switzer­land must ini­tially be marked in the sched­ule of claims pro me­mor­ia.

²If the bank­ruptcy li­quid­at­or opts not to con­tin­ue the pro­ceed­ings un­der civil and ad­min­is­trat­ive law, he or she shall give the cred­it­ors the op­por­tun­ity to de­mand as­sign­ment in ac­cord­ance with Art­icle 260 para­graph 1 DEBA¹.

³Un­less pro­ceed­ings un­der civil and ad­min­is­trat­ive law are con­tin­ued by the bank­ruptcy as­sets or by in­di­vidu­al as­sign­ee cred­it­ors, the claim is deemed to be re­cog­nised, and the cred­it­ors no longer have any right to con­test it via an ac­tion to con­test the sched­ule of claims.

⁴Where pro­ceed­ings are con­tin­ued by in­di­vidu­al as­sign­ee cred­it­ors, the amount by which the suc­cess of these pro­ceed­ings re­duces the sub­or­din­ated cred­it­ors' share of the bank­ruptcy as­sets serves to sat­is­fy the as­sign­ee cred­it­ors up to the full cov­er­age of their col­loc­ated claims as well as the cost of the pro­ceed­ings. Any sur­plus ac­crues to the bank­ruptcy as­sets.

¹The cred­it­ors may in­spect the sched­ule of claims un­der Art­icle 5 for a peri­od of at least 20 days.

²The bank­ruptcy li­quid­at­or shall give pub­lic no­tice of when and how the sched­ule of claims may be in­spec­ted.

³He or she may provide for in­spec­tion at the Bank­ruptcy Of­fice in the bank­ruptcy ven­ue.

⁴The bank­ruptcy li­quid­at­or shall in­form every cred­it­or whose claim was not col­loc­ated as re­gistered or as a book or land re­gister claim why the claim was re­jec­ted in full or in part.

¹Ac­tions to con­test the sched­ule of claims are gov­erned by Art­icle 250 DEBA¹.

²The dead­line for ac­tions runs from the point when the sched­ule of claims may first be in­spec­ted.

¹The bank­ruptcy li­quid­at­or shall de­cide on the type and tim­ing of real­isa­tion and shall carry it out.

²Pledged as­sets may not be real­ised by means oth­er than a pub­lic auc­tion ex­cept with the pledgees' con­sent.

³As­sets may be real­ised without delay if they:

a.

are sub­ject to rap­id de­pre­ci­ation;

b.

gen­er­ate un­reas­on­ably high ad­min­is­trat­ive costs;

c.

are traded on a rep­res­ent­at­ive mar­ket; or

d.

are of in­sig­ni­fic­ant value.

¹Pub­lic auc­tions are held in ac­cord­ance with Art­icles 257-259 DEBA¹ un­less this Or­din­ance spe­cifies oth­er­wise.

²The bank­ruptcy li­quid­at­or shall con­duct the auc­tion. He or she may set a re­serve price for the first auc­tion in the terms and con­di­tions.

³He or she shall give pub­lic no­tice that the terms and con­di­tions may be in­spec­ted. He or she may provide for in­spec­tion at the Bank­ruptcy or Debt En­force­ment Of­fice at the bank­ruptcy ven­ue.

¹In the cer­ti­fic­ate of as­sign­ment per­tain­ing to a leg­al claim on the part of the bank­ruptcy as­sets with­in the mean­ing of Art­icle 260 DEBA¹, the bank­ruptcy li­quid­at­or shall spe­cify the dead­line with­in which the as­sign­ee cred­it­ors must as­sert their claim be­fore the court. If the dead­line is al­lowed to ex­pire, the as­sign­ment lapses.

²The as­sign­ee cred­it­ors shall re­port without delay the out­come of their as­ser­tion to the bank­ruptcy li­quid­at­or and, fol­low­ing com­ple­tion of the bank­ruptcy pro­ceed­ings, to FINMA.

³Where no cred­it­or de­mands as­sign­ment or the dead­line ex­pires without the claim be­ing as­ser­ted, the bank­ruptcy li­quid­at­or and, fol­low­ing com­ple­tion of the bank­ruptcy pro­ceed­ings, FINMA shall de­cide on any fur­ther real­isa­tion of the leg­al claims in ques­tion.

¹The bank­ruptcy li­quid­at­or shall peri­od­ic­ally draw up a real­isa­tion plan con­tain­ing in­form­a­tion on the bank­ruptcy as­sets await­ing real­isa­tion and the nature of their real­isa­tion.

²Real­isa­tion ac­tions that may pro­ceed without delay in ac­cord­ance with Art­icle 31 need not be in­cluded in the real­isa­tion plan.

³The as­sign­ment of leg­al claims un­der Art­icle 33 does not con­sti­tute a real­isa­tion ac­tion.

⁴The bank­ruptcy li­quid­at­or for­wards the real­isa­tion plan to the cred­it­ors and sets them a dead­line with­in which they may de­mand a con­test­able rul­ing from FINMA on in­di­vidu­al real­isa­tion ac­tions con­tained therein.

The fol­low­ing li­ab­il­it­ies are covered first from the bank­ruptcy as­sets in the or­der lis­ted:

a.

li­ab­il­it­ies un­der Art­icle 37 BankA and un­der Art­icle 43 of this Or­din­ance;

b.

li­ab­il­it­ies in­curred by the bank­ruptcy as­sets dur­ing the pro­ceed­ings;

c.

all costs in­curred through the open­ing and con­duct of the bank­ruptcy pro­ceed­ings;

d.

li­ab­il­it­ies to­wards a third-party cus­todi­an un­der Art­icle 17 para­graph 3 of the Book Entry Se­cur­it­ies Act of 3 Oc­to­ber 2008¹.

¹The bank­ruptcy li­quid­at­or may provide for pro­vi­sion­al dis­tri­bu­tions. He or she shall draw up a pro­vi­sion­al dis­tri­bu­tion list for this pur­pose and for­ward it to FINMA for ap­prov­al.

²If all as­sets have been real­ised and all pro­cesses re­lat­ing to the cal­cu­la­tion of as­sets and li­ab­il­it­ies have been com­pleted, the bank­ruptcy li­quid­at­or shall draw up the fi­nal dis­tri­bu­tion list as well as the fi­nal ac­counts and for­ward these to FINMA for ap­prov­al. The pro­ceed­ings con­duc­ted by in­di­vidu­al cred­it­ors un­der Art­icle 260 DEBA¹ may be dis­reg­arded.

³Once the dis­tri­bu­tion list has been ap­proved, the bank­ruptcy li­quid­at­or shall pay out to the cred­it­ors.

⁴No pay­out is made for claims:

a.

whose ex­ist­ence or amount has not been defin­it­ively es­tab­lished;

b.

whose be­ne­fi­ciar­ies are not defin­it­ively known;

c.

that are par­tially covered by col­lat­er­al out­side Switzer­land or un­der Art­icle 18 that has not been real­ised; or

d.

that are likely to be par­tially covered by a pending set­tle­ment in for­eign fore­clos­ure pro­ceed­ings con­nec­ted to the bank bank­ruptcy.

⁵If a sep­ar­ate sched­ule of claims is drawn up in ac­cord­ance with Art­icle 27 para­graph 3, the bank­ruptcy li­quid­at­or may with FINMA's con­sent carry out the dis­tri­bu­tion once this Or­din­ance has entered in­to force, and in­de­pend­ently of the entry in­to force of the sched­ule of claims re­gard­ing the re­main­ing claims.

¹Cred­it­ors may de­mand a cer­ti­fic­ate of loss un­der Art­icle 265 DEBA¹ for the amount of their claim that re­mains out­stand­ing from the bank­ruptcy li­quid­at­or and, fol­low­ing com­ple­tion of the bank­ruptcy pro­ceed­ings, from FINMA against pay­ment of a flat fee.

²The bank­ruptcy li­quid­at­or shall in­form the cred­it­ors of this op­tion when pay­ing out their share.

¹Sub­ject to the rules on dormant as­sets, FINMA shall is­sue the ne­ces­sary in­struc­tions for de­pos­it­ing the shares not yet paid out as well as the se­greg­ated cus­tody as­sets not yet sur­rendered.

²De­pos­ited as­sets that be­come free or are not with­drawn after 10 years shall be real­ised and dis­trib­uted in ac­cord­ance with Art­icle 39 un­less spe­cial le­gis­la­tion provides oth­er­wise.

¹If as­sets or oth­er leg­al claims that have not pre­vi­ously been in­cluded in the bank­ruptcy as­sets are dis­covered with­in 10 years of the bank­ruptcy pro­ceed­ings be­ing com­pleted, FINMA shall ap­point a bank­ruptcy li­quid­at­or to re­start the bank­ruptcy pro­ceed­ings without fur­ther form­al­it­ies.

²As­sets dis­covered after the fact or leg­al claims shall be dis­trib­uted to cred­it­ors who suffered a loss and for whom the bank­ruptcy li­quid­at­or has the de­tails needed to make the pay­out. The bank­ruptcy li­quid­at­or may ask cred­it­ors to provide up-to-date de­tails, stat­ing that these are re­quired in con­nec­tion with their claim. He or she shall set a reas­on­able dead­line for this pur­pose.

³Where it is clear that the costs in­curred through re­start­ing the bank­ruptcy pro­ceed­ings will not be covered or will only be mar­gin­ally ex­ceeded by the ex­pec­ted pro­ceeds from real­ising the as­sets dis­covered after the fact, FINMA may re­frain from re­start­ing the pro­ceed­ings. In such cases, it shall pass the as­sets dis­covered after the fact to the fed­er­al gov­ern­ment.

¹The pro­spect of re­struc­tur­ing the bank or con­tinu­ing in­di­vidu­al bank­ing ser­vices is jus­ti­fied if, at the time of the de­cision, there is suf­fi­cient evid­ence that:

a.

the cred­it­ors are likely to fare bet­ter from the re­struc­tur­ing than from the bank­ruptcy; and

b.

the re­struc­tur­ing plan is feas­ible in terms of time and scope.

²There is no auto­mat­ic en­ti­tle­ment to open­ing re­struc­tur­ing pro­ceed­ings.

¹FINMA opens the re­struc­tur­ing pro­ceed­ings with a rul­ing.

²It shall give pub­lic no­tice of the open­ing im­me­di­ately.

³In its open­ing rul­ing, it shall spe­cify wheth­er ex­ist­ing pro­tect­ive meas­ures un­der Art­icle 26 BankA are to be main­tained or altered, or re­placed by new ones.

⁴When it opens the re­struc­tur­ing pro­ceed­ings, it may also already ap­prove the re­struc­tur­ing plan.

¹FINMA shall is­sue a rul­ing ap­point­ing a re­struc­tur­ing agent, un­less it is to carry out these du­ties it­self.

²Where FINMA ap­points a re­struc­tur­ing agent, it must en­sure when mak­ing its choice that the agent has suf­fi­cient time and ex­pert­ise to carry out the man­date di­li­gently, ef­fi­ciently and ef­fect­ively and is not sub­ject to any con­flict of in­terests that might com­prom­ise its abil­ity to per­form the man­date.

³ It shall de­term­ine the re­struc­tur­ing agent's powers and wheth­er he or she is au­thor­ised to act in place of the bank's gov­ern­ing bod­ies. Dur­ing the dur­a­tion of the re­struc­tur­ing pro­ceed­ings, he or she may in par­tic­u­lar make com­mit­ments per­tain­ing to the re­struc­tur­ing to be hon­oured by the bank.

⁴FINMA shall spe­cify the de­tails of the task, in par­tic­u­lar with re­gard to the re­struc­tur­ing agent's costs, re­port­ing and con­trol.

Dur­ing the re­struc­tur­ing pro­ceed­ings, li­ab­il­it­ies in­to which the bank enters with the re­struc­tur­ing agent's con­sent shall, in the event that re­struc­tur­ing fails, be sat­is­fied be­fore all oth­er claims in the en­su­ing bank­ruptcy pro­ceed­ings.

¹The re­struc­tur­ing plan shall set out the ba­sic ele­ments of the re­struc­tur­ing, the bank's fu­ture cap­it­al struc­ture and busi­ness mod­el after the re­struc­tur­ing, and ex­plains how it ful­fils the con­di­tions for ap­prov­al un­der Art­icle 31 para­graph 1 BankA.

²The re­struc­tur­ing plan shall also provide in­form­a­tion on the fol­low­ing ele­ments:

a.

fu­ture com­pli­ance with the li­cens­ing re­quire­ments;

b.

the bank's as­sets and li­ab­il­it­ies;

c.

the bank's fu­ture or­gan­isa­tion and man­age­ment and, if the bank is part of a bank­ing group or a bank­ing con­glom­er­ate, the fu­ture or­gan­isa­tion of the group or con­glom­er­ate;

d.

wheth­er and how the re­struc­tur­ing plan af­fects the rights of the bank's cred­it­ors as well as the own­ers;

e.

wheth­er the bank's right to con­test leg­al acts and as­sert civil re­spons­ib­il­ity claims un­der Art­icle 32 BankA are ex­cluded;

f.

which cur­rent mem­bers of the bank's gov­ern­ing bod­ies are to re­tain re­spons­ib­il­ity for its man­age­ment, and why this is in the in­terests of the bank, its cred­it­ors and its own­ers;

g.

the sev­er­ance set­tle­ments for de­part­ing mem­bers of gov­ern­ing bod­ies;

h.

those trans­ac­tions which re­quire an entry in the Com­mer­cial Re­gister or in the Land Re­gister; and

i.

the pro­vi­sions in Sec­tions 3 and 4 of this Chapter which are to be ap­plied to a spe­cif­ic re­struc­tur­ing case.

³FINMA may re­quest that the re­struc­tur­ing plan provide in­form­a­tion on ad­di­tion­al ele­ments.

¹FINMA shall ap­prove the re­struc­tur­ing plan with a rul­ing if the con­di­tions stip­u­lated in the BankA and this Or­din­ance are met.

²It shall give pub­lic no­tice of the ap­prov­al and the ba­sic fea­tures of the re­struc­tur­ing plan, stat­ing how the af­fected cred­it­ors and own­ers can in­spect the plan.

³If the re­struc­tur­ing plan or­ders the trans­fer of land, the grant­ing of in rem rights and ob­lig­a­tions over land or changes in the share cap­it­al, these or­ders shall have dir­ect ef­fect with the ap­prov­al of the re­struc­tur­ing plan. The re­quired entries in the Land Re­gister, the Com­mer­cial Re­gister or in any oth­er re­gister shall be made as soon as pos­sible.¹

¹Where the re­struc­tur­ing plan provides for an in­ter­ven­tion in­to cred­it­ors' rights, FINMA sets the cred­it­ors a dead­line at the latest with the ap­prov­al of the re­struc­tur­ing plan with­in which they can re­ject it. The dead­line is of at least ten work­ing days. The trans­fer of li­ab­il­it­ies and con­trac­tu­al re­la­tion­ships and the change of debt­or in­volved do not in­fringe upon the rights of the cred­it­ors.

²Cred­it­ors wish­ing to re­ject the plan must do so in writ­ing. They must give their name and ad­dress as well as the amount of their claim at the time of open­ing the re­struc­tur­ing pro­ceed­ings, and the reas­ons for it. The re­jec­tion let­ter must be sent to the re­struc­tur­ing agent.

¹If the re­struc­tur­ing plan al­lows cor­por­ate ac­tions in ac­cord­ance with this Sec­tion, it is ne­ces­sary to en­sure that:

a.

the cred­it­ors' in­terests take pre­ced­ence over the in­terests of the own­ers and the hier­archy of cred­it­ors is re­spec­ted;

b.

the pro­vi­sions of the Swiss Code of Ob­lig­a­tions¹ ap­ply mu­tatis mutandis.

²Where grant­ing pre-emption rights may en­danger the re­struc­tur­ing, they may be denied to the own­ers.

¹If the re­struc­tur­ing plan provides for the con­ver­sion of debt cap­it­al in­to equity cap­it­al then:

a.

suf­fi­cient debt cap­it­al must be con­ver­ted in­to equity cap­it­al to en­sure that the bank holds the re­quired cap­it­al to con­tin­ue its busi­ness activ­it­ies after the re­struc­tur­ing is com­pleted;

b.

share cap­it­al must be com­pletely writ­ten down be­fore con­vert­ing debt cap­it­al in­to equity cap­it­al;

c.

debt cap­it­al may be con­ver­ted in­to equity cap­it­al only if the debt in­stru­ments is­sued by the bank which are part of ad­di­tion­al core cap­it­al or sup­ple­ment­ary cap­it­al have already been con­ver­ted in­to equity cap­it­al, in par­tic­u­lar con­tin­gent con­vert­ible bonds;

d.

the fol­low­ing or­der of rank shall be ob­served when con­vert­ing debt cap­it­al in­to equity cap­it­al where claims of the next rank are only con­ver­ted if the con­ver­sion of claims of the pre­vi­ous rank does not suf­fice to meet the cap­it­al ad­equacy re­quire­ments in ac­cord­ance with let­ter a:

1.

sub­or­din­ated claims without cap­it­al ad­equacy eli­gib­il­ity,

2.

oth­er claims not ex­cluded from the con­ver­sion, with the ex­cep­tion of de­pos­its, and

3.

de­pos­its, in so far as they are not priv­ileged.

¹All debt cap­it­al may be con­ver­ted in­to equity cap­it­al. The fol­low­ing are ex­cluded:

a.

priv­ileged claims in classes 1 and 2 ac­cord­ing to Art­icle 219 para­graph 4 DEBA¹ and Art­icle 37a para­graph 1-5 BankA to the ex­tent that they are classed as pref­er­en­tial;

b.

se­cured claims to the ex­tent that they are se­cured and off­set­table claims to the ex­tent that they are off­set­table, if the cred­it­or can cred­ibly demon­strate the ex­ist­ence, amount and fact that the claim is ob­ject of a rel­ev­ant agree­ment, or this is evid­ent from the bank's books.

In ad­di­tion to or in­stead of con­vert­ing debt cap­it­al in­to equity cap­it­al, FINMA may or­der a par­tial or full re­duc­tion in claims. Art­icle 48 let­ters a-c and Art­icle 49 ap­ply equally.

¹Where the re­struc­tur­ing plan provides for in­di­vidu­al bank­ing ser­vices or groups of ser­vices to be con­tin­ued and for cer­tain bank as­sets or con­trac­tu­al re­la­tion­ships to be trans­ferred to an­oth­er leg­al en­tity, in­clud­ing a bridge bank, it must in par­tic­u­lar:

a.

name the leg­al en­tity or en­tit­ies to which such bank­ing ser­vices and as­sets are to be trans­ferred;

b.

de­scribe the as­sets, li­ab­il­it­ies and con­trac­tu­al re­la­tion­ships to be trans­ferred and the com­pens­a­tion to be provided for them;

c.

de­scribe the bank­ing ser­vices that are to be con­tin­ued and trans­ferred;

d.

list the cor­por­ate ac­tions un­der­taken and, where bank­ing ser­vices are to be trans­ferred to a bridge bank, de­scribe how as­sets and li­ab­il­it­ies will be shared between the bank and the bridge bank;

e.

stip­u­late an ob­lig­a­tion on the bank's part to take any ac­tion ne­ces­sary to en­sure that all of the as­sets and ob­jects to be trans­ferred, in­clud­ing in par­tic­u­lar those loc­ated abroad or sub­ject to for­eign law, can be trans­ferred to the oth­er leg­al en­tity;

f.

ex­plain wheth­er com­pens­a­tion is to be paid, how such com­pens­a­tion is to be cal­cu­lated and wheth­er a max­im­um com­pens­a­tion amount is to be im­posed;

g.

ex­plain wheth­er sys­tems and ap­plic­a­tions will be used jointly by the bank and the oth­er leg­al en­tity and, if bank­ing ser­vices are to be con­tin­ued by a bridge bank, how the lat­ter will be guar­an­teed ac­cess to pay­ment trans­ac­tion and fin­an­cial mar­ket in­fra­struc­ture and how it will be able to use this;

h.

de­scribe how to pre­serve the leg­al and eco­nom­ic con­nec­tions between as­sets, li­ab­il­it­ies and con­trac­tu­al re­la­tion­ships, thereby en­sur­ing that only the fol­low­ing can be trans­ferred:

1.

all claims and li­ab­il­it­ies on the bank's part vis-à-vis a coun­ter­party or sev­er­al coun­ter­parties that can be off­set, in par­tic­u­lar those that are sub­ject to a net­ting agree­ment,

2.

se­cured claims and li­ab­il­it­ies to­geth­er with their col­lat­er­al, and

3.

struc­tured fin­an­cing ar­range­ments or com­par­able cap­it­al mar­ket agree­ments to which the bank is a party, to­geth­er with all rights and ob­lig­a­tions per­tain­ing to them.

²As soon as the ap­proved re­struc­tur­ing plan is en­force­able, or in the case of a sys­tem­ic­ally im­port­ant bank once the re­struc­tur­ing plan has been ap­proved, all trans­ferred as­sets or con­trac­tu­al re­la­tion­ships, to­geth­er with all rights and ob­lig­a­tions per­tain­ing to them at the time of the ap­prov­al of the re­struc­tur­ing plan, pass to the new leg­al en­tity or en­tit­ies.

¹The bridge bank serves to en­sure the tem­por­ary con­tinu­ation of in­di­vidu­al bank­ing ser­vices trans­ferred to it.

²FINMA shall grant the bridge bank a li­cence with a fixed term of two years. It may de­vi­ate from the li­cens­ing re­quire­ments when grant­ing it. The li­cence may be ex­ten­ded.

Re­pealed

¹The fol­low­ing meas­ures may re­strict the leg­ally bind­ing nature of an in­struc­tion with­in the mean­ing of Art­icle 89 para­graph 2 of the Fin­an­cial Mar­ket In­fra­struc­ture Act of 19 June 2015¹ (Fin­MIA):

a.

the open­ing of bank­ruptcy pro­ceed­ings un­der Art­icles 33-37g BankA; and

b.

pro­tect­ive meas­ures un­der Art­icle 26 para­graph 1 let­ters f-h BankA.

²In its rul­ing, FINMA shall ex­pressly or­der the time from when the meas­ures un­der para­graph 1 ap­ply.

¹Net­ting agree­ments un­der Art­icle 27 para­graph 1 BankA in­clude the fol­low­ing in par­tic­u­lar:

a.

net­ting pro­vi­sions in bi­lat­er­al agree­ments or in frame­work agree­ments;

b.

off­set­ting and net­ting pro­vi­sions as well as de­fault agree­ments of cent­ral coun­ter­parties, cent­ral cus­todi­ans or pay­ment sys­tems un­der Art­icle 89 para­graph 1 Fin­MIA¹.

¹The re­quire­ment set out in Art­icle 12 para. 2^bis of the Bank­ing Or­din­ance of 30 April 2014² (BO) ap­plies to:

a.

con­tracts for the pur­chase, sale, lend­ing or re­pur­chase agree­ments re­lat­ing to cer­ti­fic­ated se­cur­it­ies, un­cer­ti­fic­ated se­cur­it­ies or in­ter­me­di­ated se­cur­it­ies and cor­res­pond­ing trans­ac­tions in­volving in­dices con­tain­ing these un­der­ly­ing as­sets, as well as op­tions in re­la­tion to such un­der­ly­ing as­sets;

b.

con­tracts for the pur­chase and sale with fu­ture de­liv­ery, lend­ing or re­pur­chase agree­ments re­lat­ing to com­mod­it­ies and cor­res­pond­ing trans­ac­tions in­volving in­dices con­tain­ing these un­der­ly­ing as­sets, as well as op­tions in re­la­tion to such un­der­ly­ing as­sets;

c.

con­tracts for the pur­chase, sale or trans­fer of com­mod­it­ies, ser­vices, rights or in­terest at a fu­ture date and at a pre­de­ter­mined price (fu­tures con­tracts);

d.

con­tracts for swap trans­ac­tions re­lat­ing to in­terest, for­eign ex­change, cur­ren­cies and com­mod­it­ies as well as to cer­ti­fic­ated se­cur­it­ies, un­cer­ti­fic­ated se­cur­it­ies, in­ter­me­di­ated se­cur­it­ies, the weath­er, emis­sions or in­fla­tion, and cor­res­pond­ing trans­ac­tions in­volving in­dices con­tain­ing these un­der­ly­ings, in­clud­ing cred­it de­riv­at­ives and in­terest rate op­tions;

e.

in­ter­b­ank bor­row­ing agree­ments;

f.

oth­er con­tracts with the same ef­fect as those lis­ted un­der let­ters a-e;

g.

con­tracts in ac­cord­ance with let­ters a-f in the form of mas­ter agree­ments;

h.

con­tracts in ac­cord­ance with let­ters a-g entered in­to by for­eign group en­tit­ies guar­an­teed or oth­er­wise se­cured by a bank or se­cur­it­ies deal­er dom­i­ciled in Switzer­land.

²The re­quire­ment set out in Art­icle 12 para. 2^bis BO does not ap­ply to:

a.

con­tracts which provide for the ter­min­a­tion or ex­er­cise of rights pur­su­ant to Art­icle 30a para. 1 BA which are neither dir­ectly nor in­dir­ectly triggered by ac­tions taken by FINMA in ac­cord­ance with the el­ev­enth sec­tion of the Bank­ing Act;

b.

con­tracts which are con­cluded or settled dir­ectly or in­dir­ectly through a fin­an­cial mar­ket in­fra­struc­ture or or­gan­ised trad­ing fa­cil­ity;

c.

con­tracts with cent­ral banks;

d.

con­tracts of group en­tit­ies which are not act­ive in the fin­an­cial ser­vices sec­tor;

e.

con­tracts with coun­ter­parties that are not com­pan­ies with­in the mean­ing of Art­icle 77 of the Fin­an­cial Markt In­fra­struc­ture Or­din­ance of 25 Novem­ber 2015³;

f.

con­tracts re­lat­ing to the place­ment of fin­an­cial in­stru­ments in the mar­ket;

g.

amend­ments to ex­ist­ing con­tracts which be­come ef­fect­ive pur­su­ant to their terms and con­di­tions and without fur­ther ac­tion by the parties.

¹The bank­ruptcy li­quid­at­or or the re­struc­tur­ing agent shall re­port to FINMA, sum­mar­ising the pro­gress of the bank­ruptcy pro­ceed­ings or the re­struc­tur­ing pro­ceed­ings.

²The bank­ruptcy li­quid­at­or's con­clud­ing re­port shall also con­tain the fol­low­ing in­form­a­tion:

a.

de­tails of the com­ple­tion of all pro­cesses re­lat­ing to the cal­cu­la­tion of the as­sets and li­ab­il­it­ies;

b.

de­tails of the status of the leg­al claims as­signed to cred­it­ors un­der Art­icle 260 DEBA¹; and

c.

a list of the shares not yet paid out as well as the se­greg­ated cus­tody as­sets not yet sur­rendered, com­plete with an ex­plan­a­tion as to why no pay­out or sur­render has been pos­sible to date.

³FINMA shall give pub­lic no­tice that the bank­ruptcy pro­ceed­ings or the re­struc­tur­ing pro­ceed­ings have been com­pleted.

¹FINMA shall de­term­ine how the in­solv­ency and busi­ness doc­u­ment­a­tion is to be archived fol­low­ing com­ple­tion of the bank­ruptcy pro­ceed­ings or the re­struc­tur­ing pro­ceed­ings.

²The in­solv­ency doc­u­ment­a­tion and the re­main­ing busi­ness doc­u­ment­a­tion shall be des­troyed on FINMA's in­struc­tions 10 years after com­ple­tion of the bank­ruptcy pro­ceed­ings or the re­struc­tur­ing pro­ceed­ings.

³Any spe­cial le­gis­la­tion provid­ing oth­er­wise for the archiv­ing of in­di­vidu­al doc­u­ments ap­plies not­with­stand­ing.

¹The FINMA Bank­ruptcy Or­din­ance of 30 June 2005¹ is re­pealed.

²…²

The pro­vi­sions of this Or­din­ance ap­ply to pro­ceed­ings pending in court when this Or­din­ance comes in­to force.

¹The re­quire­ments set out in Art­icle 12 para. 2^bis BO² in con­junc­tion with Art­icle 56 must be met:

a.

with­in twelve months of this amend­ment com­ing in­to ef­fect for the con­clu­sion or amend­ment of con­tracts with banks and se­cur­it­ies deal­ers or with coun­ter­parties who would qual­i­fy as such if they were dom­i­ciled in Switzer­land;

b.

with­in 18 months of this amend­ment com­ing in­to ef­fect for the con­clu­sion or amend­ment of con­tracts with oth­er coun­ter­parties.

² FINMA may ex­tend the im­ple­ment­a­tion dead­line for in­di­vidu­al in­sti­tu­tions where this is jus­ti­fied.

This Or­din­ance comes in­to force on 1 Novem­ber 2012.