109TH CONGRESS

1ST SESSION S. 2141

AN ACT

To make improvements to the Federal Deposit Insurance

Act.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION. 1. TREATMENT OF CERTAIN AGREEMENTS BY

2 CONSERVATORS OR RECEIVERS OF DEPOSI3 TORY INSTITUTIONS.

4 (a) DEFINITION OF SECURITIES CONTRACT.—

5 (1) FDIC-INSURED DEPOSITORY INSTITU6 TIONS.—Section 11(e)(8)(D)(ii) of the Federal De7 posit Insurance Act (12 U.S.C. 1821(e)(8)(D)(ii)) is

8 amended—

9 (A) in subclause (I)—

10 (i) by striking ‘‘mortgage loan, or’’

11 and inserting ‘‘mortgage loan,’’; and

12 (ii) by inserting before the semicolon

13 ‘‘(whether or not such repurchase or re14 verse repurchase transaction is a ‘repur15 chase agreement’, as defined in clause

16 (v))’’;

17 (B) in subclause (IV)—

18 (i) by inserting ‘‘(including by nova19 tion)’’ after ‘‘the guarantee’’; and

20 (ii) by inserting before the semicolon

21 ‘‘(whether or not such settlement is in con22 nection with any agreement or transaction

23 referred to in subclauses (I) through (XII)

24 (other than subclause (II))’’;
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1 (C) in subclause (IX), by striking ‘‘or

2 (VIII)’’ each place that term appears and in3 serting ‘‘(VIII), (IX), or (X)’’;

4 (D) by redesignating subclauses (VI)

5 through (X) as subclauses (VIII) through

6 (XII), respectively; and

7 (E) by inserting after subclause (V) the

8 following:

9 ‘‘(VI) means any extension of

10 credit for the clearance or settlement

11 of securities transactions;

12 ‘‘(VII) means any loan trans13 action coupled with a securities collar

14 transaction, any prepaid securities

15 forward transaction, or any total re16 turn swap transaction coupled with a

17 securities sale transaction;’’.

18 (2) INSURED CREDIT UNIONS.—Section

19 207(c)(8)(D)(ii) of the Federal Credit Union Act

20 (12 U.S.C. 1787(c)(8)(D)(ii)) is amended—

21 (A) in subclause (I)—

22 (i) by striking ‘‘mortgage loan, or’’

23 and inserting ‘‘mortgage loan,’’; and

24 (ii) by inserting before the semicolon

25 ‘‘(whether or not such repurchase or re-
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1 verse repurchase transaction is a ‘repur2 chase agreement’, as defined in clause

3 (v))’’;

4 (B) in subclause (IV)—

5 (i) by inserting ‘‘(including by nova6 tion)’’ after ‘‘the guarantee’’; and

7 (ii) by inserting before the semicolon

8 ‘‘(whether or not such settlement is in con9 nection with any agreement or transaction

10 referred to in subclauses (I) through (XII)

11 (other than subclause (II))’’;

12 (C) in subclause (IX), by striking ‘‘or

13 (VIII)’’ each place that term appears and in14 serting ‘‘(VIII), (IX), or (X)’’;

15 (D) by redesignating subclauses (VI)

16 through (X) as subclauses (VIII) through

17 (XII), respectively; and

18 (E) by inserting after subclause (V) the

19 following:

20 ‘‘(VI) means any extension of

21 credit for the clearance or settlement

22 of securities transactions;

23 ‘‘(VII) means any loan trans24 action coupled with a securities collar

25 transaction, any prepaid securities
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1 forward transaction, or any total re2 turn swap transaction coupled with a

3 securities sale transaction;’’.

4 (b) DEFINITION OF FORWARD CONTRACT.—Section

5 11(e)(8)(D)(iv)(I) of the Federal Deposit Insurance Act

6 (12 U.S.C. 1821(e)(8)(D)(iv)(I)) is amended by striking

7 ‘‘transaction, reverse repurchase transaction’’ and insert8 ing ‘‘or reverse repurchase transaction (whether or not

9 such repurchase or reverse repurchase transaction is a ‘re10 purchase agreement’, as defined in clause (v))’’.

11 (c) DEFINITION OF SWAP AGREEMENT.—

12 (1) FDIC-INSURED DEPOSITORY INSTITU13 TIONS.—Section 11(e)(8)(D)(vi) of the Federal De14 posit Insurance Act (12 U.S.C. 1821(e)(8)(D)(vi)) is

15 amended—

16 (A) in subclause (I)—

17 (i) by striking ‘‘or precious metals’’

18 and inserting ‘‘, precious metals, or other

19 commodity’’; and

20 (ii) by striking ‘‘or a weather swap,

21 weather derivative, or weather option’’ and

22 inserting ‘‘weather swap, option, future, or

23 forward agreement; an emissions swap, op24 tion, future, or forward agreement; or an
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1 inflation swap, option, future, or forward

2 agreement’’;

3 (B) in subclause (II)—

4 (i) by inserting ‘‘or other derivatives’’

5 after ‘‘dealings in the swap’’; and

6 (ii) by striking ‘‘future, or option’’

7 and inserting ‘‘future, option, or spot

8 transaction’’; and

9 (C) by striking ‘‘the Securities Act of

10 1933, the Securities Exchange Act of 1934, the

11 Public Utility Holding Company Act of 1935,

12 the Trust Indenture Act of 1939, the Invest13 ment Company Act of 1940, the Investment

14 Advisers Act of 1940, the Securities Investor

15 Protection Act of 1970, the Commodity Ex16 change Act, the Gramm-Leach-Bliley Act, and

17 the Legal Certainty for Bank Products Act of

18 2000’’ and inserting ‘‘the Gramm-Leach-Bliley

19 Act, the Legal Certainty for Bank Products Act

20 of 2000, the securities laws (as that term is de21 fined in section 3(a)(47) of the Securities Ex22 change Act of 1934) and the Commodity Ex23 change Act’’.
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1 (2) INSURED CREDIT UNIONS.—Section

2 207(c)(8)(D)(vi) of the Federal Credit Union Act

3 (12 U.S.C. 1787(c)(8)(D)(vi)) is amended—

4 (A) in subclause (I)—

5 (i) by striking ‘‘or precious metals’’

6 and inserting ‘‘, precious metals, or other

7 commodity’’; and

8 (ii) by striking ‘‘or a weather swap,

9 weather derivative, or weather option’’ and

10 inserting ‘‘weather swap, option, future, or

11 forward agreement; an emissions swap, op12 tion, future, or forward agreement; or an

13 inflation swap, option, future, or forward

14 agreement’’;

15 (B) in subclause (II)—

16 (i) by inserting ‘‘or other derivatives’’

17 after ‘‘dealings in the swap’’; and

18 (ii) by striking ‘‘future, or option’’

19 and inserting ‘‘future, option, or spot

20 transaction’’; and

21 (C) by striking ‘‘the Securities Act of

22 1933, the Securities Exchange Act of 1934, the

23 Public Utility Holding Company Act of 1935,

24 the Trust Indenture Act of 1939, the Invest25 ment Company Act of 1940, the Investment
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1 Advisers Act of 1940, the Securities Investor

2 Protection Act of 1970, the Commodity Ex3 change Act, the Gramm-Leach-Bliley Act, and

4 the Legal Certainty for Bank Products Act of

5 2000’’ and inserting ‘‘the Gramm-Leach-Bliley

6 Act, the Legal Certainty for Bank Products Act

7 of 2000, the securities laws (as that term is de8 fined in section 3(a)(47) of the Securities Ex9 change Act of 1934) and the Commodity Ex10 change Act’’.

11 SEC. 2. CLARIFYING AMENDMENTS RELATING TO DEFINI12 TION OF PERSON.

13 (a) FDIC-INSURED DEPOSITORY INSTITUTIONS

14 DEFINITION OF PERSON.—Section 11(e)(8)(D) of the

15 Federal Deposit Insurance Act (12 U.S.C. 1821(e)(8)(D))

16 is amended by adding at the end the following:

17 ‘‘(ix) PERSON.—The term ‘person’ includes

18 any governmental entity and any entity in19 cluded in the definition of the term ‘person’ in

20 section 1 of title 1, United States Code.’’.

21 (b) INSURED CREDIT UNIONS DEFINITION OF PER22 SON.—Section 207(c)(8)(D) of the Federal Credit Union

23 Act (12 U.S.C. 1787(c)(8)(D)) is amended by adding at

24 the end the following:
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1 ‘‘(vii) PERSON.—The term ‘person’ in2 cludes any governmental entity and any

3 entity included in the definition of the

4 term ‘person’ in section 1 of title 1, United

5 States Code.’’.

6 SEC. 3. FEDERAL DEPOSIT INSURANCE CORPORATION IM7 PROVEMENT ACT OF 1991.

8 (a) ENFORCEABILITY OF BILATERAL NETTING CON9 TRACTS.—Section 403 of the Federal Deposit Insurance

10 Corporation Improvement Act of 1991 (12 U.S.C. 4403)

11 is amended—

12 (1) in each of subsections (a) and (f), by strik13 ing ‘‘paragraphs (8)(E), (8)(F), and (10)(B) of’’

14 each place that term appears; and

15 (2) in subsection (a), by inserting ‘‘terminated,

16 liquidated, accelerated, and’’ after ‘‘institutions shall

17 be’’.

18 (b) ENFORCEABILITY OF CLEARING ORGANIZATION

19 NETTING CONTRACTS.—Section 404 of the Federal De20 posit Insurance Corporation Improvement Act of 1991 (12

21 U.S.C. 4404) is amended—

22 (1) in each of subsections (a) and (h), by strik23 ing ‘‘paragraphs (8)(E), (8)(F), and (10)(B) of’’

24 each place that term appears; and
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1 (2) in subsection (a), by inserting ‘‘terminated,

2 liquidated, accelerated, and’’ after ‘‘organization

3 shall be’’.

4 SEC. 4. CONFORMING AMENDMENTS.

5 (a) CLARIFYING DEFINITIONS.—Title 11, United

6 States Code, is amended—

7 (1) in section 101—

8 (A) in paragraph (22)(A)—

9 (i) by striking ‘‘(domestic or foreign)’’

10 after ‘‘an entity’’; and

11 (ii) by inserting ‘‘(whether or not a

12 ‘customer’, as defined in section 741)’’

13 after ‘‘custodian for a customer’’;

14 (B) in paragraph (22A)—

15 (i) by striking ‘‘on any day during the

16 previous 15-month period’’ each place it

17 appears and inserting ‘‘at such time or on

18 any day during the 15-month period pre19 ceding the date of the filing of the peti20 tion’’; and

21 (ii) by inserting ‘‘(aggregated across

22 counterparties)’’ after ‘‘principal amount

23 outstanding’’;

24 (C) in paragraph (25)(A)—
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1 (i) by inserting ‘‘, as defined in sec2 tion 761’’ after ‘‘commodity contract’’; and

3 (ii) by striking ‘‘repurchase trans4 action, reverse repurchase transaction,’’

5 and inserting ‘‘repurchase or reverse re6 purchase transaction (whether or not such

7 repurchase or reverse repurchase trans8 action is a ‘repurchase agreement’, as de9 fined in this section)’’;

10 (D) in paragraph (53B)(A)—

11 (i) in clause (i)—

12 (I) in subclause (II), by striking

13 ‘‘or precious metals’’ and inserting ‘‘,

14 precious metals, or other commodity

15 agreement’’;

16 (II) in subclause (VII), by strik17 ing ‘‘or’’ at the end;

18 (III) in subclause (VIII), by

19 striking ‘‘weather derivative, or weath20 er option’’ and inserting ‘‘option, fu21 ture, or forward agreement’’; and

22 (IV) by adding at the end the fol23 lowing:

24 ‘‘(IX) an emissions swap, option,

25 future, or forward agreement; or
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1 ‘‘(X) an inflation swap, option,

2 future, or forward agreement;’’; and

3 (ii) in clause (ii)—

4 (I) in subclause (I), by inserting

5 ‘‘or other derivatives’’ after ‘‘dealings

6 in the swap’’; and

7 (II) in subclause (II), by striking

8 ‘‘future, or option’’ and inserting ‘‘fu9 ture, option, or spot transaction’’; and

10 (E) in paragraph (53B)(B), by striking

11 ‘‘the Securities Act of 1933, the Securities Ex12 change Act of 1934, the Public Utility Holding

13 Company Act of 1935, the Trust Indenture Act

14 of 1939, the Investment Company Act of 1940,

15 the Investment Advisers Act of 1940, the Secu16 rities Investor Protection Act of 1970, the Com17 modity Exchange Act, the Gramm-Leach-Bliley

18 Act, and the Legal Certainty for Bank Products

19 Act of 2000’’ and inserting ‘‘the Gramm-Leach20 Bliley Act, the Legal Certainty for Bank Prod21 ucts Act of 2000, the securities laws (as that

22 term is defined in section 3(a)(47) of the Secu23 rities Exchange Act of 1934) and the Com24 modity Exchange Act’’;

25 (2) in section 362(b)—
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1 (A) by striking paragraphs (6) and (7) and

2 inserting the following:

3 ‘‘(6) under subsection (a) of this section, of the

4 exercise by a commodity broker, forward contract

5 merchant, stockbroker, financial institution, finan6 cial participant, or securities clearing agency of any

7 contractual right (as defined in section 555 or 556)

8 under any security agreement or arrangement or

9 other credit enhancement forming a part of or re10 lated to any commodity contract, forward contract

11 or securities contract, or of any contractual right (as

12 defined in section 555 or 556) to offset or net out

13 any termination value, payment amount, or other

14 transfer obligation arising under or in connection

15 with 1 or more such contracts, including any master

16 agreement for such contracts;

17 ‘‘(7) under subsection (a) of this section, of the

18 exercise by a repo participant or financial partici19 pant of any contractual right (as defined in section

20 559) under any security agreement or arrangement

21 or other credit enhancement forming a part of or re22 lated to any repurchase agreement, or of any con23 tractual right (as defined in section 559) to offset or

24 net out any termination value, payment amount, or

25 other transfer obligation arising under or in connec-
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1 tion with 1 or more such agreements, including any

2 master agreement for such agreements;’’;

3 (B) by striking paragraph (17) and insert4 ing the following:

5 ‘‘(17) under subsection (a) of this section, of

6 the exercise by a swap participant or financial par7 ticipant of any contractual right (as defined in sec8 tion 560) under any security agreement or arrange9 ment or other credit enhancement forming a part of

10 or related to any swap agreement, or of any contrac11 tual right (as defined in section 560) to offset or net

12 out any termination value, payment amount, or

13 other transfer obligation arising under or in connec14 tion with 1 or more such agreements, including any

15 master agreement for such agreements;’’; and

16 (C) by striking paragraph (27) and insert17 ing the following:

18 ‘‘(27) under subsection (a) of this section, of

19 the exercise by a master netting agreement partici20 pant of any contractual right (as defined in section

21 555, 556, 559, or 560) under any security agree22 ment or arrangement or other credit enhancement

23 forming a part of or related to any master netting

24 agreement, or of any contractual right (as defined in

25 section 555, 556, 559, or 560) to offset or net out
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1 any termination value, payment amount, or other

2 transfer obligation arising under or in connection

3 with 1 or more such master netting agreements to

4 the extent that such participant is eligible to exercise

5 such rights under paragraph (6), (7), or (17) for

6 each individual contract covered by the master net7 ting agreement in issue; and’’; and

8 (3) in section 741(7)(A)—

9 (A) in clause (i)—

10 (i) by striking ‘‘mortgage loan or’’

11 and inserting ‘‘mortgage loan,’’; and

12 (ii) by inserting before the semicolon

13 ‘‘(whether or not such repurchase or re14 verse repurchase transaction is a ‘repur15 chase agreement’, as defined in section

16 101)’’;

17 (B) in clause (iii)—

18 (i) by inserting ‘‘(including by nova19 tion)’’ after ‘‘the guarantee’’; and

20 (ii) by inserting before the semicolon

21 ‘‘(whether or not such settlement is in con22 nection with any agreement or transaction

23 referred to in clauses (i) through (xi))’’;
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1 (C) in clause (viii), by striking ‘‘or (vii)’’

2 each place it appears and inserting ‘‘(vii), (viii),

3 or (ix)’’;

4 (D) by redesignating clauses (v) through

5 (ix) as clauses (vii) through (xi), respectively;

6 and

7 (E) by inserting after clause (iv) the fol8 lowing:

9 ‘‘(v) any extension of credit for

10 the clearance or settlement of securi11 ties transactions;

12 ‘‘(vi) any loan transaction cou13 pled with a securities collar trans14 action, any prepaid forward securities

15 transaction, or any total return swap

16 transaction coupled with a securities

17 sale transaction;’’.

18 (b) LIMITATION OF AVOIDANCE POWERS UNDER

19 MASTER NETTING AGREEMENT.—Section 546 of title 11,

20 United States Code, is amended—

21 (1) in subsection (e)—

22 (A) by inserting ‘‘(or for the benefit of)’’

23 before ‘‘a commodity broker’’; and

24 (B) by inserting ‘‘or that is a transfer

25 made by or to (or for the benefit of) a com-
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1 modity broker, forward contract merchant,

2 stockbroker, financial institution, financial par3 ticipant, or securities clearing agency, in con4 nection with a securities contract, as defined in

5 section 741(7), commodity contract, as defined

6 in section 761(4), or forward contract,’’ after

7 ‘‘securities clearing agency,’’;

8 (2) in subsection (f)—

9 (A) by striking ‘‘that is a margin payment,

10 as defined in section 741 or 761 of this title,

11 or settlement payment, as defined in section

12 741 of this title,’’; and

13 (B) by inserting ‘‘(or for the benefit of)’’

14 before ‘‘a repo participant’’;

15 (3) in subsection (g), by inserting ‘‘(or for the

16 benefit of)’’ before ‘‘a swap participant’’; and

17 (4) in subsection (j), by inserting ‘‘(or for the

18 benefit of)’’ after ‘‘made by or to’’.

19 (c) SIPC STAY.—Section 5(b)(2)(C)(iii) of the Secu20 rities Investor Protection Act of 1970 (15 U.S.C.

21 78eee(b)(2)(C)(iii)) is amended—

22 (1) by inserting ‘‘a derivatives clearing organi23 zation (as defined in the Commodity Exchange Act),

24 a multilateral clearing organization (as defined in
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1 the Federal Deposit Insurance Corporation Improve2 ment Act of 1991),’’ after ‘‘rule or bylaw of’’; and

3 (2) by striking ‘‘or a securities clearance agen4 cy, a right set forth in a bylaw of a clearing organi5 zation or contract market’’ and inserting ‘‘a securi6 ties clearing agency, a contract market designated

7 under the Commodity Exchange Act, a derivatives

8 transaction execution facility registered under the

9 Commodity Exchange Act, or a board of trade (as

10 defined in the Commodity Exchange Act),’’.

11 (d) SAVINGS CLAUSE.—Title IX of the Bankruptcy

12 Abuse Prevention and Consumer Protection Act of 2005

13 (Public Law 109–8, 119 Stat. 146) is amended by adding

14 at the end the following:

15 ‘‘SEC. 912. SAVINGS CLAUSE.

16 ‘‘The meanings of terms used in this title are applica17 ble for the purposes of this title only, and shall not be

18 construed or applied so as to challenge or affect the char19 acterization, definition, or treatment of any similar terms

20 under any other statute, regulation, or rule, including the

21 Gramm-Leach-Bliley Act, the Legal Certainty for Bank

22 Products Act of 2000, the securities laws (as that term

23 is defined in section 3(a)(47) of the Securities Exchange

24 Act of 1934), and the Commodity Exchange Act.’’.
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1 SEC. 5. WALKAWAY CLAUSES.

2 Section 11(e)(8)(G)) of the Federal Deposit Insur3 ance Act (12 U.S.C. 1821(e)(8)(G)) is amended to read

4 as follows:

5 ‘‘(G) WALKAWAY CLAUSES NOT EFFEC6 TIVE.—

7 ‘‘(i) IN GENERAL.—Notwithstanding

8 the provisions of subparagraphs (A) and

9 (E), and sections 403 and 404 of the Fed10 eral Deposit Insurance Corporation Im11 provement Act of 1991, no walkaway

12 clause shall be enforceable in a qualified fi13 nancial contract of an insured depository

14 institution in default, provided that any

15 payment or delivery obligations otherwise

16 due from a party pursuant to the qualified

17 financial contract shall be suspended from

18 the time that the receiver is appointed

19 until the earlier of—

20 ‘‘(I) the time that such party re21 ceives notice that such contract has

22 been transferred pursuant to subpara23 graph (A); or

24 ‘‘(II) 5:00 p.m. (eastern time) on

25 the business day following the date of

26 the appointment of the receiver.
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1 ‘‘(ii) WALKAWAY CLAUSE DEFINED.—

2 For purposes of this subparagraph, the

3 term ‘walkaway clause’ means any provi4 sion in a qualified financial contract that

5 suspends, conditions, or extinguishes a

6 payment obligation of a party in whole or

7 in part or does not create a payment obli8 gation of a party that would otherwise

9 exist solely because of such party’s status

10 as a nondefaulting party in connection

11 with the insured depository institution’s in12 solvency or the appointment of or the exer13 cise of rights or powers by a conservator or

14 receiver, and not as a result of a party’s

15 exercise of any right to offset, setoff, or

16 net obligations that exist under the con17 tract, any other contract between those

18 parties, or applicable law.’’.

19 SEC. 6. EFFECTIVE DATE.

20 (a) EFFECTIVE DATE.—This Act and the amend21 ments made by this Act shall take effect on the date of

22 enactment of this Act.

23 (b) NO RETROACTIVE APPLICATION OF AMEND24 MENTS.—The amendments made by this Act shall not

25 apply to any cases commenced under title 11, United
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1 States Code, or appointments made under any Federal or

2 State law, before the effective date of this Act.

Passed the Senate December 17, 2005.

Attest:

Secretary.
109TH CONGRESS

1ST SESSION S. 2141

AN ACT

To make improvements to the Federal Deposit

Insurance Act.