Unsecured Loans and Open Contracts. Counterparties that have ongoing unsecured deals with a bank, such as unfunded loan commitments, agent bank responsibilities, real estate leases or servicing contracts, are less protected. Such counterparties should evaluate the likely attractiveness their deal has to the bank and its successors in a potential resolution. As noted, the FDIC may seek to take on only favorable contracts, or may reform contracts, accepting only the "good parts." For example, the FDIC might continue to collect on amounts due under a partially funded construction loan, but repudiate the duty to fund any future advances.

Another common case of an unsecured bank contract is a real estate lease in which the bank is either a tenant or a landlord. Here, as in corporate bankruptcy, either kind of lease may be re-evaluated by the receiver and accepted, rejected, transferred in a sale, or partially assumed and partially rejected. As with other unsecured obligations, the careful and timely filing of a proof of claim may be important to preserve a creditor's priority for possible reimbursement.

Multiple Lender Transactions. Multiple lender arrangements also may provide some safety. The receivership of one member of a syndicated loan's lender group may not be highly consequential to the borrower or the other lenders. While that lender's receiver probably will not fund future advances under the loan (especially on a construction loan), the typical syndicated deal has provisions for lender replacement, so long as the lender satisfies certain eligibility requirements (or other lenders in the group can make up the share). The failed lender that does not advance will become a defaulting lender, and likely will lose its voting rights and its right to distributions.

A deal originated by a lender and then sold (as in securitization transactions) is even less likely to be affected by a receivership of the originating lender after the loan has been sold to others. If the originating lender has retained loan servicing rights, they may be transferred with the loan, or to a new servicer, either by FDIC action, or by the new owner or trustee of the relevant special purpose entity if the FDIC repudiates the servicing contract.

Letters of Credit. Letters of credit, often considered a rock-solid commitment in business transactions, do not necessarily fare well in bank receiverships. Letters of credit constitute a bank's forward commitment to pay an amount on demand to a beneficiary, based on the credit of another (the "account party"). However, unlike the FDIC statement about perfected collateral, the FDIC does not give a clean assurance about letters of credit. The FDIC states that "payment will be made to the extent of available collateral, up to . . . the outstanding principal amount . . . of the secured obligations, together with interest at the contract rate . . ." and certain contractual expenses. But an unsecured or undersecured letter of credit, with a credit-impaired account party, is at risk of repudiation, as the FDIC is likely to view it as akin to an unfunded loan commitment to a shaky borrower. That is little comfort to the letter of credit beneficiary. However, the FDIC's rationale appears to be that the beneficiary accepted the letter of credit based on the creditworthiness of the issuing bank, and that it should take the risk of having erred in that assessment. Counterparties relying on letters of credit may want to re-examine the stability and credit risk presented by the banks that issued them.

No magic bullet will keep a deal with a bank facing regulatory resolution or receivership from being terminated or changed. The legal processes for resolution are complex and discretionary. However, counterparties still can exercise vigilance and take some steps to recognize and protect against risks in their deal structuring with banks.