I

103D CONGRESS

1ST SESSION H. R. 1713

To establish the Resolution, Asset Management, and Liquidation Agency

as a successor to the Resolution Trust Corporation, to abolish the Thrift

Depositor Protection Oversight Board and the Resolution Trust Corporation, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

APRIL 7, 1993

Mr. VENTO introduced the following bill; which was referred to the Committee

on Banking, Finance and Urban Affairs

A BILL

To establish the Resolution, Asset Management, and Liquidation Agency as a successor to the Resolution Trust Corporation, to abolish the Thrift Depositor Protection Oversight Board and the Resolution Trust Corporation, and

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Revitalization of De5 pository Institution Liquidation Procedures Act of 1993’’.
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1 TITLE I—SINGLE AGENCY FOR

2 CONSERVATOR AND RECEIV3 ERSHIP POWERS

4 SEC. 101. ESTABLISHMENT OF RESOLUTION, ASSET MAN5 AGEMENT, AND LIQUIDATION AGENCY.

6 (a) IN GENERAL.—Section 21A of the Federal Home

7 Loan Bank Act (12 U.S.C. 1441a) is amended by striking

8 subsections (a) and (b) and inserting the following new

9 subsections:

10 ‘‘(a) RESOLUTION, ASSET MANAGEMENT, AND LIQ11 UIDATION AGENCY.—

12 ‘‘(1) ESTABLISHMENT.—There is hereby estab13 lished an agency in the executive branch to be

14 known as the Resolution, Asset Management, and

15 Liquidation Agency (hereafter in this section re16 ferred to as the ‘Agency’) under the direction of the

17 Secretary of the Treasury.

18 ‘‘(2) MANAGEMENT.—

19 ‘‘(A) ADMINISTRATOR.—The agency shall

20 be under the management of an Administrator

21 (hereafter in this section referred to as the ‘Ad22 ministrator’) who shall be appointed by the

23 President, by and with the advice and consent

24 of the Senate, and shall serve at the pleasure

25 of the President.
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1 ‘‘(B) DEPUTY ADMINISTRATOR.—

2 ‘‘(i) APPOINTMENT.—The Agency

3 shall have a Deputy Administrator who

4 shall be appointed by the President, by and

5 with the advice and consent of the Senate.

6 ‘‘(ii) DUTIES AND POWERS.—The

7 Deputy Administrator shall—

8 ‘‘(I) perform such duties and ex9 ercise such powers as the Adminis10 trator may prescribe; and

11 ‘‘(II) exercise the duties and pow12 ers of the Administrator when the Ad13 ministrator is absent or unable to

14 serve or when the position of the Ad15 ministrator is vacant.

16 ‘‘(3) STAFF.—

17 ‘‘(A) IN GENERAL.—Subject to other pro18 visions of this section and section 104 of the

19 Revitalization of Depository Institution Liq20 uidation Procedures Act of 1993, the Adminis21 trator may appoint, direct, and fix the pay and

22 number of such officers and employees as the

23 administrator determines to be appropriate.

24 ‘‘(B) NONAPPLICABILITY OF OTHER PRO25 VISIONS.—Chapter 51 and subchapters III, VII,
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1 and VIII of chapter 53 of title 5, United States

2 Code, shall not apply to the appointment or

3 compensation of employees of the Adminis4 trator.

5 ‘‘(C) STAFF FOR PURSUING CLAIMS

6 AGAINST INSTITUTION-AFFILIATED PARTIES.—

7 ‘‘(i) IN GENERAL.—The Administrator

8 shall maintain an executive-level position

9 and dedicated staff to assist and advise the

10 Administrator and other agencies in pursu11 ing cases, civil claims, and administrative

12 enforcement actions against institution-af13 filiated parties of insured depository insti14 tutions under the jurisdiction of the Ad15 ministrator.

16 ‘‘(ii) DUTIES.—Staff appointed under

17 clause (i) shall have such duties as the Ad18 ministrator establishes, including the duty

19 to compile and publish a semiannual report

20 to the Congress on the coordinated pursuit

21 of claims by all Federal financial institu22 tion regulatory agencies, including the De23 partment of Justice and the Securities and

24 Exchange Commission.
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1 ‘‘(D) UTILIZATION OF PERSONNEL OF

2 OTHER AGENCIES.—With the agreement of any

3 executive agency (as defined in section 105 of

4 title 5, United States Code), the Administrator

5 shall, whenever practicable, utilize the personnel

6 of any such agency on a reimbursable basis to

7 cover actual and reasonable expenses.

8 ‘‘(E) PROHIBITION ON PAYMENTS OF BO9 NUSES.—Notwithstanding any other provision

10 of law, the Administrator may not pay any offi11 cer whose annual rate of basic pay is equal to

12 or greater than the annual rate of basic pay

13 which is payable under Level I of the Executive

14 Schedule any bonus, award, or other similar

15 cash payment.

16 ‘‘(4) COMPENSATION AND GRADE.—

17 ‘‘(A) IN GENERAL.—The Administrator

18 shall, at all times, classify jobs in the same

19 manner as the Federal Deposit Insurance Cor20 poration and shall provide the same rates of

21 basic pay and additional compensation and ben22 efits to employees as those provided to employ23 ees of the Federal Deposit Insurance Corpora24 tion.
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1 ‘‘(B) PARTICIPATION IN BENEFIT

2 PLANS.—Employees of the Agency shall be per3 mitted by the Administrator and the Federal

4 Deposit Insurance Corporation to participate in

5 the same health, insurance, pension, and other

6 benefit plans available to employees of the Fed7 eral Deposit Insurance Corporation under the

8 same conditions available to employees of the

9 Federal Deposit Insurance Corporation.

10 ‘‘(C) REIMBURSEMENT.—The Adminis11 trator shall reimburse the Federal Deposit In12 surance Corporation for any additional costs in13 curred by such corporation with respect to em14 ployees of the Agency pursuant to this para15 graph.

16 ‘‘(5) REORGANIZATIONS.—

17 ‘‘(A) IN GENERAL.—If, pursuant to a

18 transfer of functions, a major reorganization, a

19 reduction-in-force or otherwise, the Adminis20 trator, in the sole discretion of the Adminis21 trator, determines that the services of an em22 ployee are unnecessary, the Administrator shall

23 transfer, and the Federal Deposit Insurance

24 Corporation shall accept, such employee at the

25 closest office of the Federal Deposit Insurance
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1 Corporation in accordance with the provisions

2 of paragraphs (1), (2), and (4) of section 404

3 of the Financial Institutions Reform, Recovery

4 and Enforcement Act of 1989.

5 ‘‘(B) APPLICABILITY OF SECTION 404.—

6 Paragraphs (1), (2), and (4) of section 404 of

7 the Financial Institutions Reform, Recovery,

8 and Enforcement Act of 1989 shall apply with

9 respect to each employee referred to in subpara10 graph (A) (of this paragraph) in the same man11 ner such paragraphs applied with respect to

12 employees identified for transfer under section

13 403(b) of such Act.

14 ‘‘(6) AGREEMENTS LIMITING RIGHTS.—The

15 protections provided to employees pursuant to para16 graphs (4) and (5) may not be limited or modified

17 by contract, interagency agreement, or otherwise.

18 ‘‘(7) GAO STUDY OF TEMPORARY EMPLOY19 EES.—Within 6 months of the transfer of employees

20 to the Administrator pursuant to this section, the

21 Comptroller General of the United States shall issue

22 a report concerning the advisability of limiting the

23 Agency’s continued use of Liquidation Grade em24 ployees.
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1 ‘‘(8) SUNSET PROVISION.—The authority of the

2 Administrator and the Agency to be appointed as a

3 conservator or receiver of an insured depository in4 stitution (as defined in section 3(c) of the Federal

5 Deposit Insurance Act) shall cease on October 1,

6 1998.

7 ‘‘(b) DUTIES AND POWERS.—

8 ‘‘(1) DUTY TO RESOLVE FAILED DEPOSITORY

9 INSTITUTIONS.—The duty of the Administrator shall

10 be to manage and resolve all insured depository in11 stitutions for which the Administrator has been ap12 pointed conservator or receiver.

13 ‘‘(2) GENERAL POWERS.—In addition to the

14 conservatorship and receivership powers under sec15 tions 21C and 21D with regard to all insured depos16 itory institutions and subject to any other provision

17 of this section, the Administrator shall have the fol18 lowing powers:

19 ‘‘(A) To adopt, alter, and use an agency

20 seal.

21 ‘‘(B) To enter into contracts.

22 ‘‘(C) To make advance, progress, or other

23 payments.

24 ‘‘(D) To acquire, hold, lease, mortgage,

25 maintain, or dispose of, at public or private
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1 sale, real and personal property, using any le2 gally available private sector methods, including

3 securitization of debt or equity, limited partner4 ships, mortgage investment conduits, and real

5 estate investment trusts, and otherwise exercise

6 all the usual incidents of ownership of property

7 necessary and convenient to the operations of

8 the Agency.

9 ‘‘(E) To sue and be sued in any court of

10 competent jurisdiction.

11 ‘‘(F) To deposit any securities or funds

12 held by the Agency in any facility or depositary

13 described in section 13(b) of the Federal De14 posit Insurance Act under the terms and condi15 tions applicable to the Federal Deposit Insur16 ance Corporation under such section 13(b) and

17 pay fees with respect to, and receive interest

18 and dividends on, any such deposit.

19 ‘‘(G) To take warrants, voting and

20 nonvoting equity, or other participation inter21 ests in institutions or assets or properties of in22 stitutions for which the Agency has been ap23 pointed conservator or receiver.

24 ‘‘(H) To make loans and, with respect to

25 eligible residential properties, develop risk shar-
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1 ing structures and other credit enhancements to

2 assist in the provision of property ownership,

3 rental, and cooperative housing opportunities

4 for lower- and moderate-income families.

5 ‘‘(I) To exercise any other power estab6 lished under this section and such incidental

7 powers as are necessary to carry out the Ad8 ministrator’s duties and functions under this

9 section and sections 21C and 21D.

10 ‘‘(3) SPECIAL POWERS.—In addition to the

11 powers of the Administrator described in paragraph

12 (2), the Administrator shall have the following

13 powers:

14 ‘‘(A) CONTRACTS.—The Administrator

15 may enter into contracts with any person, in16 cluding State housing finance authorities (as

17 such term is defined in section 1301 of the Fi18 nancial Institutions Reform, Recovery, and En19 forcement Act of 1989) and insured depository

20 institutions, which the Administrator deter21 mines to be necessary or appropriate to carry

22 out its responsibilities under this section. Such

23 contracts shall be subject to the procedures

24 adopted pursuant to paragraph (7).
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1 ‘‘(B) UTILIZATION OF PRIVATE SECTOR.—

2 In carrying out the Administrator’s duties

3 under this section and sections 21C and 21D,

4 the Administrator shall utilize the services of

5 private persons, including real estate and loan

6 portfolio asset management, property manage7 ment, auction marketing, and brokerage serv8 ices, if such services are available in the private

9 sector and the Administrator determines utiliza10 tion of such services are practicable and effi11 cient.

12 ‘‘(C) MERGERS AND CONSOLIDATIONS.—

13 The Administrator may require a merger or

14 consolidation of any institution over which the

15 Administrator has jurisdiction, if such merger

16 or consolidation is consistent with section

17 13(c)(4) of the Federal Deposit Insurance Act.

18 ‘‘(D) ORGANIZATION OF SAVINGS ASSOCIA19 TIONS.—The Administrator may organize 1 or

20 more Federal savings associations—

21 ‘‘(i) which shall be chartered by the

22 Director of the Office of Thrift Super23 vision,

24 ‘‘(ii) the deposits of which, if any,

25 shall be insured by the Federal Deposit In-
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1 surance Corporation through the Savings

2 Association Insurance Fund, and

3 ‘‘(iii) which shall operate in accord4 ance with subsection (e).

5 ‘‘(4) OATHS; SUBPOENAS.—

6 ‘‘(A) IN GENERAL.—In the course of, or in

7 connection with, any proceeding under this sec8 tion, or in connection with any claim, the Ad9 ministrator and any representative of the Ad10 ministrator, including any person designated to

11 conduct any hearing under this section, shall

12 have the following powers:

13 ‘‘(i) To administer oaths and affirma14 tions.

15 ‘‘(ii) To take depositions or cause

16 depositions to be taken.

17 ‘‘(iii) To issue, revoke, quash, or mod18 ify subpoenas and subpoenas duces tecum.

19 ‘‘(B) SUBPOENAS.—The attendance of wit20 nesses and the production of documents pro21 vided for in this subsection may be required

22 from any place in any State or in any territory

23 or other place subject to the jurisdiction of the

24 United States at any designated place where

25 such proceeding is being conducted.
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1 ‘‘(C) ENFORCEMENT OF SUBPOENAS.—

2 The Administrator or any party to proceedings

3 under this section may apply to the United

4 States District Court for the District of Colum5 bia, or the United States district court for the

6 judicial district or the United States court in

7 any territory in which such proceeding is being

8 conducted, or where the witness resides or car9 ries on business, for enforcement of any sub10 poena or subpoena duces tecum issued pursuant

11 to this subsection, and such courts shall have

12 jurisdiction and power to order and require

13 compliance with the subpoena or subpoena

14 duces tecum.

15 ‘‘(D) WITNESS FEES.—Witnesses subpoe16 naed under this subsection shall be paid the

17 same fees and mileage that are paid witnesses

18 in the district courts of the United States.

19 ‘‘(E) ATTORNEYS’ FEES.—

20 ‘‘(i) AWARD.—Any court having juris21 diction of any proceeding instituted under

22 this section by an insured depository insti23 tution or a director or officer of any insti24 tution, may allow to any such party such
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1 reasonable expenses and attorneys’ fees as

2 the court deems just and proper.

3 ‘‘(ii) PAYMENT.—Any expenses or fees

4 awarded under clause (i) by any court shall

5 be paid by the depository institution or by

6 the Administrator from assets of the insti7 tution.

8 ‘‘(F) MISDEMEANOR.—Any person who

9 willfully fails or refuses to attend and testify or

10 to answer any lawful inquiry or to produce

11 books, papers, correspondence, memoranda,

12 contracts, agreements, or other records, if in

13 such person’s power to do so, in obedience to

14 the subpoena of the Administrator, shall, upon

15 conviction, be subject to a fine under title 18,

16 United States Code, imprisonment for a term of

17 not more than 1 year, or both.

18 ‘‘(5) CONDUCT OF ADMINISTRATOR’S DUTIES AS

19 CONSERVATOR OR RECEIVER.—The Administrator

20 shall carry out the Administrator’s responsibilities as

21 conservator or receiver for insured depository insti22 tutions in a manner which—

23 ‘‘(A) maximizes the net present value re24 turn from the sale or other disposition of—
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1 ‘‘(i) institutions for which the Admin2 istrator has been appointed conservator or

3 receiver; or

4 ‘‘(ii) the assets of such institutions;

5 ‘‘(B) minimizes the impact of such trans6 actions on local real estate and financial mar7 kets;

8 ‘‘(C) makes efficient use of funds obtained

9 from the Treasury of the United States (wheth10 er by appropriation or borrowing, including

11 funds borrowed from the Federal Financing

12 Bank);

13 ‘‘(D) minimizes the amount of any loss re14 alized in the resolution of cases; and

15 ‘‘(E) maximizes the preservation of the

16 availability and affordability of residential real

17 property for low- and moderate-income individ18 uals.

19 ‘‘(6) PROHIBITED PRACTICES.—The Adminis20 trator may not use any authority under this sub21 section to engage in any of the following activities:

22 ‘‘(A) Sell assets of an insured depository

23 institution by providing a loan for any portion

24 of the purchase price which—
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1 ‘‘(i) defers or delays the payment of

2 interest; or

3 ‘‘(ii) obligates the purchaser to pay in4 terest only out of the net income realized

5 by the purchaser from the assets.

6 ‘‘(B) Arrange for the issuance of securities

7 backed by a pool of the loan assets of an in8 sured depository institution unless the assets—

9 ‘‘(i) have been evaluated using similar

10 underwriting standards and criteria;

11 ‘‘(ii) have long average maturities;

12 ‘‘(iii) do not require balloon payments

13 of principal; and

14 ‘‘(iv) provide for the payment of inter15 est at rates that are based upon the same

16 indexes,

17 and unless any representation or warranty of18 fered with the security does not guarantee to

19 the purchaser of the securities, directly or indi20 rectly, an investment return.

21 ‘‘(C) require the inclusion of an asset of an

22 insured depository institution in a bulk sale of

23 assets if the Agency has received a good faith

24 offer to purchase the asset for a price and on

25 terms that would result in proceeds to the
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1 Agency in excess of those that would be realized

2 for that asset in the bulk sale.

3 ‘‘(D) LIMITATION ON CAPITAL CONTRIBU4 TION AUTHORITY.—

5 ‘‘(i) IN GENERAL.—The Agency may

6 not make any payment in the form of a

7 capital contribution to a depository institu8 tion which, at the time of payment, is an

9 institution for which the Agency or any

10 other person is acting as conservator.

11 ‘‘(ii) LENDING AUTHORITY NOT AF12 FECTED.—Clause (i) shall not be con13 strued as prohibiting the Corporation from

14 making loans or advances to any such in15 stitution.

16 ‘‘(7) REGULATIONS, POLICIES, AND PROCE17 DURES.—

18 ‘‘(A) STRATEGIES, POLICIES, AND

19 GOALS.—The Administrator may prescribe such

20 regulations and issue such orders, in accordance

21 with subchapter II of chapter 5 of title 5, Unit22 ed States Code, as the Administrator deter23 mines to be appropriate to carry out this sec24 tion and sections 21C and 21D.
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1 ‘‘(B) PREPARATION AND MAINTENANCE OF

2 RECORDS RELATING TO SOLICITATION AND AC3 CEPTANCE OF OFFERS.—The Administrator

4 shall—

5 ‘‘(i) document decisions made in the

6 solicitation and selection process and the

7 reasons for the decisions; and

8 ‘‘(ii) maintain such documentation in

9 the offices of the Agency, as well as any

10 other documentation relating to the solici11 tation and selection process.

12 ‘‘(C) DISTRESSED AREAS.—

13 ‘‘(i) IN GENERAL.—In developing the

14 Agency’s policies for implementing this

15 section, the Administrator shall take the

16 action described in clause (ii) to avoid ad17 verse economic impact for those real estate

18 markets that are distressed.

19 ‘‘(ii) VALUATION AND DISPOSITION.—

20 ‘‘(I) IN GENERAL.—The Admin21 istrator shall establish an appraisal or

22 other valuation method for determin23 ing the market value of real property.

24 ‘‘(II) CONSIDERATION OF CER25 TAIN FACTORS.—With respect to a
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1 real property asset with a market

2 value in excess of a certain dollar

3 limit (such limit to be determined by

4 the Administrator), consideration

5 shall be given to the volume of assets

6 above such limit and the potential im7 pact of sales in distressed areas.

8 ‘‘(III) SALES IN DISTRESSED

9 AREAS.—The Administrator shall not

10 sell a real property asset located in a

11 distressed area without obtaining at

12 least the minimum disposition price,

13 unless a determination has been made

14 that such a transaction furthers the

15 objectives set forth in paragraph (5).

16 ‘‘(iii) EXCEPTION.—The provisions of

17 this subparagraph shall not apply to any

18 property which is subject to the require19 ments of subsection (c).

20 ‘‘(D) DEFINITIONS.—For the purposes of

21 this subsection—

22 ‘‘(i) MINIMUM DISPOSITION PRICE.—

23 ‘‘(I) IN GENERAL.—The term

24 ‘minimum disposition price’ means 95
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1 percent of the market value estab2 lished by the Administrator.

3 ‘‘(II) CHANGE IN PERCENT4 AGE.—The Administrator, in the Ad5 ministrator’s discretion, may change

6 the percentage provided in subclause

7 (I) from time to time if the Adminis8 trator determines that such change

9 does not adversely impact the objec10 tives set forth in paragraph (5).

11 ‘‘(ii) SELL A REAL PROPERTY

12 ASSET.—The term ‘sell a real property

13 asset’ means to convey all title and interest

14 in a piece of tangible real property in

15 which the Administrator has a fee simple

16 or equivalent interest.

17 ‘‘(iii) REAL PROPERTY.—The term

18 ‘real property’ does not include loans se19 cured by real property, joint ventures, par20 ticipation interests, options, or other simi21 lar interests.

22 ‘‘(iv) SELL.—The term ‘sell’ does not

23 include hypothecation of assets, issuance of

24 asset backed securities, issuance of joint
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1 ventures, or participation interests, or

2 other similar activities.

3 ‘‘(v) DISTRESSED AREA.—

4 ‘‘(I) IN GENERAL.—The term

5 ‘distressed area’ means the geographic

6 areas in those political subdivisions

7 designated from time to time by the

8 Administrator as having depressed

9 real estate markets.

10 ‘‘(II) INITIAL DESIGNATIONS.—

11 Unless the Administrator designates

12 otherwise, the States of Arkansas,

13 Colorado, Louisiana, New Mexico,

14 Oklahoma, and Texas shall be deemed

15 to be distressed areas for purposes of

16 this subsection.

17 ‘‘(vi) MARKET VALUE.—The term

18 ‘market value’ means the most probable

19 price which a property should bring in a

20 competitive and open market if—

21 ‘‘(I) all conditions requisite to a

22 fair sale are present,

23 ‘‘(II) the buyer and seller are

24 acting prudently and are knowledge25 able, and
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1 ‘‘(III) the price is not affected by

2 any undue stimulus.

3 ‘‘(E) REAL ESTATE ASSET DIVISION.—

4 ‘‘(i) ESTABLISHMENT.—The Adminis5 trator shall establish a Real Estate Asset

6 Division to assist and advise the Adminis7 trator with respect to the management,

8 sale, or other disposition of real property

9 assets of institutions for which the Admin10 istrator has been appointed conservator or

11 receiver.

12 ‘‘(ii) DUTIES.—The Real Estate Asset

13 Division shall have such duties as the Ad14 ministrator establishes, including the publi15 cation of an inventory of real property as16 sets of institutions subject to the jurisdic17 tion of the Administrator.

18 ‘‘(iii) INVENTORY.—The inventory re19 quired under clause (ii) shall be updated

20 and published semiannually and shall iden21 tify properties with natural, cultural, rec22 reational, or scientific values of special sig23 nificance.

24 ‘‘(8) PERIODIC FINANCING STATEMENTS.—The

25 Administrator shall prepare periodic financing state-
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1 ments for the Congress and the Secretary of the

2 Treasury which shall detail—

3 ‘‘(A) anticipated funding requirements for

4 operations, case resolution, and asset liquida5 tion,

6 ‘‘(B) anticipated payments on previously

7 issued notes, guarantees, other obligations, and

8 related activities, and

9 ‘‘(C) any proposed use of notes, guarantees

10 or other obligations.

11 ‘‘(9) GOAL FOR PARTICIPATION OF SMALL BUSI12 NESS CONCERNS.—The Administrator shall have an

13 annual goal that presents the maximum practicable

14 opportunity for small business concerns and small

15 business concerns owned and controlled by socially

16 and economically disadvantaged individuals to par17 ticipate in the performance of contracts awarded by

18 the Administrator.’’.

19 (b) TEMPORARY PRESIDENTIAL DETAIL TO FILL AD20 MINISTRATOR’S POSITION.—The position of Adminis21 trator of the Resolution, Asset Management, and Liquida22 tion Agency may be treated by the President as a position

23 which is vacant as of the date of the enactment of this

24 Act due to a resignation for purposes of section 3347 of

25 title 5, United States Code.
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1 (c) EXEMPTION FROM PROVISIONS RELATING TO

2 THE ACQUISITION AND DISPOSAL OF REAL PROPERTY.—

3 Section 602 of the Federal Property and Administrative

4 Services Act of 1949 (40 U.S.C. 474) is amended by—

5 (1) redesignating subsection (f) as subsection

6 (g); and

7 (2) inserting after subsection (e) the following

8 new subsection:

9 ‘‘(f) INAPPLICABILITY TO RAMLA.—Titles I, II, IV,

10 and VIII of this Act shall not apply with respect to the

11 acquisition or disposal of real property by the Adminis12 trator of the Resolution, Asset Management, and Liquida13 tion Agency.’’.

14 (d) TECHNICAL AND CONFORMING AMENDMENTS.—

15 (1) Section 21A of the Federal Home Loan

16 Bank Act (12 U.S.C. 1441a) is amended by striking

17 ‘‘Corporation’’, ‘‘Thrift Depositor Protection Over18 sight Board’’ and ‘‘chief executive officer’’ each

19 place any such term appears (other than in sub20 sections (a) and (b) of such section, as amended by

21 subsection (a) of this section) and inserting ‘‘Admin22 istrator’’.

23 (2) Section 21A of the Federal Home Loan

24 Bank Act (12 U.S.C. 1441a) is amended by striking

25 subsection (m).
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1 (3) Section 21B is amended by striking ‘‘Thrift

2 Depositor Protection Oversight Board’’ each place

3 such term appears and inserting ‘‘Administrator’’.

4 (4) Section 21(B)(k) of the Federal Home Loan

5 Bank Act (12 U.S.C. 1441b(k)) is amended—

6 (A) by striking paragraph (7) and redesig7 nating paragraphs (2) through (6) as para8 graphs (3) through (7), respectively; and

9 (B) by inserting after paragraph (1) the

10 following new paragraph:

11 ‘‘(2) ADMINISTRATOR.—The term ‘Adminis12 trator’ means the Administrator of the Resolution,

13 Asset Management, and Liquidation Agency.’’.

14 SEC. 102. CONSERVATORSHIP AND RECEIVERSHIP POWERS

15 OF ADMINISTRATOR.

16 (a) IN GENERAL.—The Federal Home Loan Bank

17 Act (12 U.S.C. 1421 et seq.) is amended by inserting after

18 section 21B the following new sections:

19 ‘‘SEC. 21C. CONSERVATORSHIP AND RECEIVERSHIP POW20 ERS OF ADMINISTRATOR.

21 ‘‘(a) APPOINTMENT OF ADMINISTRATOR AS CON22 SERVATOR OR RECEIVER.—

23 ‘‘(1) IN GENERAL.—Notwithstanding any other

24 provision of Federal law, the law of any State, or the

25 constitution of any State, the Administrator of the
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1 Resolution, Asset Management, and Liquidation

2 Agency (hereafter in this section referred to as the

3 ‘Administrator’ and ‘Agency’, respectively) may ac4 cept appointment and act as conservator or receiver

5 for any insured depository institution upon appoint6 ment in the manner provided in paragraph (2) or

7 (3).

8 ‘‘(2) FEDERAL DEPOSITORY INSTITUTIONS.—

9 ‘‘(A) APPOINTMENT.—

10 ‘‘(i) CONSERVATOR.—The Adminis11 trator may, at the discretion of the super12 visory authority, be appointed conservator

13 of any insured Federal depository institu14 tion or District bank and the Adminis15 trator may accept such appointment.

16 ‘‘(ii) RECEIVER.—The Administrator

17 shall be appointed receiver, and shall ac18 cept such appointment, whenever a receiver

19 is appointed for the purpose of liquidation

20 or winding up the affairs of an insured

21 Federal depository institution or District

22 bank by the appropriate Federal banking

23 agency, notwithstanding any other provi24 sion of Federal law or the code of law for

25 the District of Columbia.
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1 ‘‘(B) ADDITIONAL POWERS.—In addition

2 to and not in derogation of the powers con3 ferred and the duties imposed by this section on

4 the Administrator as conservator or receiver,

5 the Administrator, to the extent not inconsist6 ent with such powers and duties, shall have any

7 other power conferred on or any duty (which is

8 related to the exercise of such power) imposed

9 on a conservator or receiver for any Federal de10 pository institution under any other provision of

11 law.

12 ‘‘(C) ADMINISTRATOR NOT SUBJECT TO

13 ANY OTHER AGENCY.—When acting as con14 servator or receiver pursuant to an appointment

15 described in subparagraph (A), the Adminis16 trator shall not be subject to the direction or

17 supervision of any other executive agency (as

18 defined in section 105 of title 5, United States

19 Code) or any State in the exercise of the Ad20 ministrator’s rights, powers, and privileges.

21 ‘‘(D) DEPOSITORY INSTITUTION IN

22 CONSERVATORSHIP SUBJECT TO BANKING

23 AGENCY SUPERVISION.—Notwithstanding sub24 paragraph (C), any Federal depository institu25 tion for which the Administrator has been ap-
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1 pointed conservator shall remain subject to the

2 supervision of the appropriate Federal banking

3 agency.

4 ‘‘(3) INSURED STATE DEPOSITORY INSTITU5 TIONS—

6 ‘‘(A) APPOINTMENT BY APPROPRIATE

7 STATE SUPERVISOR.—Whenever the authority

8 having supervision of any insured State deposi9 tory institution (other than a District deposi10 tory institution) appoints a conservator or re11 ceiver for such institution and tenders appoint12 ment to the Administrator, the Administrator

13 may accept such appointment.

14 ‘‘(B) ADDITIONAL POWERS.—In addition

15 to the powers conferred and the duties related

16 to the exercise of such powers imposed by State

17 law on any conservator or receiver appointed

18 under the law of such State for an insured

19 State depository institution, the Administrator,

20 as conservator or receiver pursuant to an ap21 pointment described in subparagraph (A), shall

22 have the powers conferred and the duties im23 posed by this section on the Administrator as

24 conservator or receiver.
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1 ‘‘(C) ADMINISTRATOR NOT SUBJECT TO

2 ANY OTHER AGENCY.—When acting as con3 servator or receiver pursuant to an appointment

4 described in subparagraph (A), the Adminis5 trator shall not be subject to the direction or

6 supervision of any other executive agency (as

7 defined in section 105 of title 5, United States

8 Code) or any State in the exercise of the Ad9 ministrator’s rights, powers, and privileges.

10 ‘‘(D) DEPOSITORY INSTITUTION IN

11 CONSERVATORSHIP SUBJECT TO BANKING

12 AGENCY SUPERVISION.—Notwithstanding sub13 paragraph (C), any insured State depository in14 stitution for which the Administrator has been

15 appointed conservator shall remain subject to

16 the supervision of the appropriate State bank or

17 savings association supervisor.

18 ‘‘(4) APPOINTMENT OF ADMINISTRATOR BY

19 THE ADMINISTRATOR.—Notwithstanding any other

20 provision of Federal law, the law of any State, or the

21 constitution of any State, the Administrator may ap22 point the Administrator as sole conservator or re23 ceiver of any insured State depository institution

24 if—

25 ‘‘(A) the Administrator determines—
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•HR 1713 IH

1 ‘‘(i) that—

2 ‘‘(I) a conservator, receiver, or

3 other legal custodian has been ap4 pointed for such institution;

5 ‘‘(II) such institution has been

6 subject to the appointment of any

7 such conservator, receiver, or custo8 dian for a period of at least 15 con9 secutive days; and

10 ‘‘(III) 1 or more of the depositors

11 in such institution is unable to with12 draw any amount of any insured de13 posit; or

14 ‘‘(ii) that such institution has been

15 closed by or under the laws of any State;

16 and

17 ‘‘(B) the Administrator determines that 1

18 or more of the grounds specified in paragraph

19 (5)—

20 ‘‘(i) existed with respect to such insti21 tution at the time—

22 ‘‘(I) the conservator, receiver, or

23 other legal custodian was appointed;

24 or
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•HR 1713 IH

1 ‘‘(II) such institution was closed;

2 or

3 ‘‘(ii) exist at any time—

4 ‘‘(I) during the appointment of

5 the conservator, receiver, or other

6 legal custodian; or

7 ‘‘(II) while such institution is

8 closed.

9 ‘‘(5) GROUNDS FOR APPOINTING CONSERVATOR

10 OR RECEIVER.—The grounds for appointing a con11 servator or receiver (which may be the Adminis12 trator) for any insured depository institution are as

13 follows:

14 ‘‘(A) ASSETS INSUFFICIENT FOR OBLIGA15 TIONS.—The institution’s assets are less than

16 the institution’s obligations to its creditors and

17 others, including members of the institution.

18 ‘‘(B) SUBSTANTIAL DISSIPATION.—Sub19 stantial dissipation of assets or earnings due

20 to—

21 ‘‘(i) any violation of any statute or

22 regulation; or

23 ‘‘(ii) any unsafe or unsound practice.
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•HR 1713 IH

1 ‘‘(C) UNSAFE OR UNSOUND CONDITION.—

2 An unsafe or unsound condition to transact

3 business.

4 ‘‘(D) CEASE AND DESIST ORDERS.—Any

5 willful violation of a cease-and-desist order

6 which has become final.

7 ‘‘(E) CONCEALMENT.—Any concealment of

8 the institution’s books, papers, records, or as9 sets, or any refusal to submit the institution’s

10 books, papers, records, or affairs for inspection

11 to any examiner or to any lawful agent of the

12 appropriate Federal banking agency or State

13 bank supervisor.

14 ‘‘(F) INABILITY TO MEET OBLIGATIONS.—

15 The institution is likely to be unable to pay its

16 obligations or meet its depositors’ demands in

17 the normal course of business.

18 ‘‘(G) LOSSES.—The institution has in19 curred or is likely to incur losses that will de20 plete all or substantially all of its capital, and

21 there is no reasonable prospect for the institu22 tion to become adequately capitalized (as de23 fined in section 38(b) of the Federal Deposit

24 Insurance Act) without Federal assistance.
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•HR 1713 IH

1 ‘‘(H) VIOLATIONS OF LAW.—Any violation

2 of any law or regulation, or any unsafe or un3 sound practice or condition that is likely to—

4 ‘‘(i) cause insolvency or substantial

5 dissipation of assets or earnings;

6 ‘‘(ii) weaken the institution’s condi7 tion; or

8 ‘‘(iii) otherwise seriously prejudice the

9 interests of the institution’s depositors or

10 the deposit insurance fund.

11 ‘‘(I) CONSENT.—The institution, by resolu12 tion of the institution’s board of directors,

13 shareholders, or members, consents to the ap14 pointment.

15 ‘‘(J) CESSATION OF INSURED STATUS.—

16 The institution ceases to be an insured institu17 tion.

18 ‘‘(K) UNDERCAPITALIZATION.—The insti19 tution is undercapitalized (as defined in section

20 38(b) of the Federal Deposit Insurance Act),

21 and—

22 ‘‘(i) has no reasonable prospect of be23 coming adequately capitalized (as defined

24 in such section);
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•HR 1713 IH

1 ‘‘(ii) fails to become adequately cap2 italized when required to do so under sec3 tion 38(f)(2)(A) of the Federal Deposit In4 surance Act;

5 ‘‘(iii) fails to submit a capital restora6 tion plan acceptable to the appropriate

7 Federal banking agency within the time

8 prescribed under section 38(e)(2)(D) of

9 such Act; or

10 ‘‘(iv) materially fails to implement a

11 capital restoration plan submitted and ac12 cepted under section 38(e)(2) of such Act.

13 ‘‘(L) CRITICAL UNDERCAPITALIZATION.—

14 The institution—

15 ‘‘(i) is critically undercapitalized (as

16 defined in section 38(b) of the Federal De17 posit Insurance Act); or

18 ‘‘(ii) otherwise has substantially insuf19 ficient capital.

20 ‘‘(6) APPOINTMENT BY DIRECTOR OF THE OF21 FICE OF THRIFT SUPERVISION.—

22 ‘‘(A) CONSERVATOR.—The Administrator

23 may, at the discretion of the Director of the Of24 fice of Thrift Supervision, be appointed con-
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•HR 1713 IH

1 servator and the Administrator may accept any

2 such appointment.

3 ‘‘(B) RECEIVER.—Whenever the Director

4 of the Office of Thrift Supervision appoints a

5 receiver under the provisions of section

6 5(d)(2)(C) of the Home Owners’ Loan Act for

7 the purpose of liquidation or winding up any

8 savings association’s affairs the Administrator

9 shall be appointed.

10 ‘‘(7) JUDICIAL REVIEW.—

11 ‘‘(A) IN GENERAL.—If the Administrator

12 appoints the Administrator as conservator or

13 receiver under paragraph (4), the insured State

14 depository institution may, within 30 days of

15 such appointment, bring an action in the Unit16 ed States district court for the judicial district

17 in which the home office of such institution is

18 located, or in the United States District Court

19 for the District of Columbia, for an order re20 quiring the Administrator to rescind the ap21 pointment.

22 ‘‘(B) COURT ACTION.—The court shall,

23 upon the merits, dismiss the action or direct the

24 Administrator to rescind the appointment.
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1 ‘‘(8) REPLACEMENT OF CONSERVATOR OF

2 STATE DEPOSITORY INSTITUTION.—

3 ‘‘(A) IN GENERAL.—In the case of any in4 sured State depository institution for which the

5 Administrator appointed the Administrator as

6 conservator pursuant to paragraph (4), the Ad7 ministrator may, without any requirement of

8 notice, hearing, or other action, rescind the ap9 pointment and appoint the Administrator as re10 ceiver of such institution.

11 ‘‘(B) REPLACEMENT TREATED AS RE12 MOVAL OF INCUMBENT.—The replacement of a

13 conservator with a receiver under subparagraph

14 (A) shall be treated as the removal of the Agen15 cy as conservator.

16 ‘‘(C) RIGHT OF REVIEW OF ORIGINAL AP17 POINTMENT NOT AFFECTED.—The replacement

18 of a conservator with a receiver under subpara19 graph (A) shall not affect any right of the in20 sured State depository institution to obtain re21 view, pursuant to paragraph (7), of the original

22 appointment of the conservator.

23 ‘‘(9) APPOINTMENT OF AGENCY TO CARRY OUT

24 PROMPT CORRECTIVE ACTION.—
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•HR 1713 IH

1 ‘‘(A) IN GENERAL.—The appropriate Fed2 eral banking agency may appoint the Agency as

3 sole receiver (or, subject to paragraph (11), sole

4 conservator) of any insured State depository in5 stitution, after consultation with the appro6 priate State supervisor, if the appropriate Fed7 eral banking agency determines that—

8 ‘‘(i) 1 or more of the grounds speci9 fied in subparagraphs (K) and (L) of para10 graph (5) exist with respect to that institu11 tion; and

12 ‘‘(ii) the appointment is necessary to

13 carry out the purpose of section 38 of the

14 Federal Deposit Insurance Act.

15 ‘‘(B) NONDELEGATION.—The appropriate

16 Federal banking agency shall not delegate any

17 action under subparagraph (A).

18 ‘‘(10) AGENCY MAY BE APPOINTED BY THE

19 FDIC AS CONSERVATOR OR RECEIVER FOR INSURED

20 DEPOSITORY INSTITUTION TO PREVENT LOSS TO DE21 POSIT INSURANCE FUND.—The Board of Directors

22 of the Federal Deposit Insurance Corporation may

23 appoint the Administrator as sole conservator or re24 ceiver of an insured depository institution, after con25 sultation with the appropriate Federal banking agen-
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•HR 1713 IH

1 cy and the appropriate State supervisor (if any), if

2 the Board of Directors determines that—

3 ‘‘(A) 1 or more of the grounds specified in

4 any subparagraph of paragraph (5) exist with

5 respect to the institution; and

6 ‘‘(B) the appointment is necessary to re7 duce—

8 ‘‘(i) the risk that the deposit insur9 ance fund would incur a loss with respect

10 to the insured depository institution, or

11 ‘‘(ii) any loss that the deposit insur12 ance fund is expected to incur with respect

13 to that institution.

14 ‘‘(11) APPROPRIATE FEDERAL BANKING AGEN15 CY SHALL NOT APPOINT CONSERVATOR UNDER CER16 TAIN PROVISIONS WITHOUT GIVING ADMINISTRATOR

17 OPPORTUNITY TO APPOINT RECEIVER.—The appro18 priate Federal banking agency shall not appoint a

19 conservator for an insured depository institution

20 under subparagraph (K) or (L) of paragraph (5)

21 without the Administrator’s consent unless the agen22 cy has given the Administrator 48 hours notice of

23 the agency’s intention to appoint the conservator

24 and the grounds for the appointment.
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1 ‘‘(12) DIRECTORS NOT LIABLE FOR ACQUIESC2 ING IN APPOINTMENT OF CONSERVATOR OR RE3 CEIVER.—The members of the board of directors of

4 an insured depository institution shall not be liable

5 to the institution’s shareholders or creditors for ac6 quiescing in or consenting in good faith to—

7 ‘‘(A) the appointment of the Administrator

8 as conservator or receiver for that institution;

9 or

10 ‘‘(B) an acquisition or combination under

11 section 38(f)(2)(A)(iii) of the Federal Deposit

12 Insurance Act.

13 ‘‘(13) ADDITIONAL POWERS.—In any case in

14 which the Administrator is appointed conservator or

15 receiver under paragraph (4), (6), (9), or (10) for

16 any insured State depository institution—

17 ‘‘(A) subject to subparagraph (B), this sec18 tion shall apply to the Administrator as con19 servator or receiver in the same manner and to

20 the same extent as if that institution were a

21 Federal depository institution for which the Ad22 ministrator had been appointed conservator or

23 receiver;

24 ‘‘(B) the Administrator shall apply the law

25 of the State in which the institution is char-
40

•HR 1713 IH

1 tered insofar as that law gives the claims of de2 positors priority over those of other creditors or

3 claimants; and

4 ‘‘(C) the Administrator as receiver of the

5 institution may—

6 ‘‘(i) liquidate the institution in an or7 derly manner; and

8 ‘‘(ii) make any other disposition of

9 any matter concerning the institution, as

10 the Administrator determines is in the best

11 interests of the institution, the depositors

12 of the institution, and the Administrator.

13 ‘‘(14) FDIA DEFINITIONS.—For purposes of

14 this section, the definitions of terms in section 3 of

15 the Federal Deposit Insurance Act shall apply with

16 respect to such terms in this section.

17 ‘‘(b) POWERS AND DUTIES OF ADMINISTRATOR AS

18 CONSERVATOR OR RECEIVER.—

19 ‘‘(1) RULEMAKING AUTHORITY OF ADMINIS20 TRATOR.—The Administrator may prescribe such

21 regulations as the Administrator determines to be

22 appropriate regarding the conduct of

23 conservatorships or receiverships.

24 ‘‘(2) GENERAL POWERS.—
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1 ‘‘(A) SUCCESSOR TO INSTITUTION.—The

2 Administrator shall, as conservator or receiver,

3 and by operation of law, succeed to—

4 ‘‘(i) all rights, titles, powers, and

5 privileges of the insured depository institu6 tion, and of any stockholder, member,

7 accountholder, depositor, officer, or direc8 tor of such institution with respect to the

9 institution and the assets of the institu10 tion; and

11 ‘‘(ii) title to the books, records, and

12 assets of any previous conservator or other

13 legal custodian of such institution.

14 ‘‘(B) OPERATE THE INSTITUTION.—The

15 Administrator may (subject to the provisions of

16 section 42 of the Federal Deposit Insurance

17 Act), as conservator or receiver—

18 ‘‘(i) take over the assets of and oper19 ate the insured depository institution with

20 all the powers of the members or share21 holders, the directors, and the officers of

22 the institution and conduct all business of

23 the institution;

24 ‘‘(ii) collect all obligations and money

25 due the institution;
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•HR 1713 IH

1 ‘‘(iii) perform all functions of the in2 stitution in the name of the institution

3 which is consistent with the appointment

4 as conservator or receiver; and

5 ‘‘(iv) preserve and conserve the assets

6 and property of such institution.

7 ‘‘(C) FUNCTIONS OF INSTITUTION’S OFFI8 CERS, DIRECTORS, AND SHAREHOLDERS.—The

9 Administrator may, by regulation or order, pro10 vide for the exercise of any function by any

11 member or stockholder, director, or officer of

12 any insured depository institution for which the

13 Administrator has been appointed conservator

14 or receiver.

15 ‘‘(D) POWERS AS CONSERVATOR.—The

16 Administrator may, as conservator, take such

17 action as may be—

18 ‘‘(i) necessary to put the insured de19 pository institution in a sound and solvent

20 condition; and

21 ‘‘(ii) appropriate to carry on the busi22 ness of the institution and preserve and

23 conserve the assets and property of the in24 stitution.
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1 ‘‘(E) ADDITIONAL POWERS AS RE2 CEIVER.—The Administrator may (subject to

3 the provisions of section 40 of the Federal De4 posit Insurance Act), as receiver, place the in5 sured depository institution in liquidation and

6 proceed to realize upon the assets of the institu7 tion, having due regard to the conditions of

8 credit in the locality.

9 ‘‘(F) ORGANIZATION OF NEW INSTITU10 TIONS.—The Administrator may, as receiver—

11 ‘‘(i) with respect to any insured sav12 ings association and by application to the

13 Director of the Office of Thrift Super14 vision, organize a new Federal savings as15 sociation to take over such assets or such

16 liabilities as the Administrator may deter17 mine to be appropriate; and

18 ‘‘(ii) with respect to any insured bank,

19 organize a new national bank under sub20 section (h) or a bridge bank under sub21 section (i).

22 ‘‘(G) MERGER; TRANSFER OF ASSETS AND

23 LIABILITIES.—

24 ‘‘(i) IN GENERAL.—The Administrator

25 may, as conservator or receiver—
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1 ‘‘(I) merge the insured depository

2 institution with another insured de3 pository institution; or

4 ‘‘(II) subject to clause (ii), trans5 fer any asset or liability of the institu6 tion in default (including assets and

7 liabilities associated with any trust

8 business) without any approval, as9 signment, or consent with respect to

10 such transfer.

11 ‘‘(ii) APPROVAL BY APPROPRIATE

12 FEDERAL BANKING AGENCY.—No transfer

13 described in clause (i)(II) may be made to

14 another depository institution (other than

15 a new bank or a bridge bank established

16 pursuant to subsection (h) or (i)) without

17 the approval of the appropriate Federal

18 banking agency for such institution.

19 ‘‘(H) PAYMENT OF VALID OBLIGATIONS.—

20 The Administrator, as conservator or receiver,

21 shall pay all valid obligations of the insured de22 pository institution in accordance with the pre23 scriptions and limitations of this Act.

24 ‘‘(I) SUBPOENA AUTHORITY.—
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1 ‘‘(i) IN GENERAL.—The Administrator

2 may, as conservator, receiver, or exclusive

3 manager and for purposes of carrying out

4 any power, authority, or duty with respect

5 to an insured depository institution (in6 cluding determining any claim against the

7 institution and determining and realizing

8 upon any asset of any person in the course

9 of collecting money due the institution), ex10 ercise any power established under section

11 21A(b)(5), and the provisions of such sec12 tion shall apply with respect to the exercise

13 of any such power under this subpara14 graph in the same manner as such provi15 sions apply under such section.

16 ‘‘(ii) AUTHORITY OF ADMINIS17 TRATOR.—A subpoena or subpoena duces

18 tecum may be issued under clause (i) only

19 by, or with the written approval of, the Ad20 ministrator or the Administrator’s des21 ignee.

22 ‘‘(iii) RULE OF CONSTRUCTION.—This

23 subsection shall not be construed as limit24 ing any rights that the Administrator, in
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•HR 1713 IH

1 any capacity, might otherwise have under

2 section 21A(b)(4).

3 ‘‘(J) INCIDENTAL POWERS.—The Adminis4 trator may, as conservator or receiver—

5 ‘‘(i) exercise all powers and authori6 ties specifically granted to conservators or

7 receivers, respectively, under this Act and

8 such incidental powers as shall be nec9 essary to carry out such powers; and

10 ‘‘(ii) take any action authorized by

11 this Act,

12 which the Administrator determines is in the

13 best interests of the depository institution, the

14 institution’s depositors, or the Administrator.

15 ‘‘(K) UTILIZATION OF PRIVATE SECTOR.—

16 In managing and disposing of assets from in17 sured depository institutions, as conservator, re18 ceiver, or as an agency, the Administrator shall

19 utilize the services of private persons, including

20 real estate and loan portfolio asset manage21 ment, property management, auction market22 ing, and brokerage services, if such services are

23 available in the private sector and the Adminis24 trator determines utilization of such services is

25 practicable, efficient, and cost effective.
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1 ‘‘(3) AUTHORITY OF RECEIVER TO DETERMINE

2 CLAIMS.—

3 ‘‘(A) IN GENERAL.—The Administrator

4 may, as receiver, determine claims in accord5 ance with the requirements of this subsection

6 and regulations prescribed under paragraph (4).

7 ‘‘(B) NOTICE REQUIREMENTS.—The re8 ceiver, in any case involving the liquidation or

9 winding up of the affairs of a closed depository

10 institution, shall—

11 ‘‘(i) promptly publish a notice to the

12 depository institution’s creditors to present

13 their claims, together with proof, to the re14 ceiver by a date specified in the notice

15 which shall be not less than 90 days after

16 the publication of such notice; and

17 ‘‘(ii) republish such notice approxi18 mately 1 month and 2 months, respec19 tively, after the publication under clause

20 (i).

21 ‘‘(C) MAILING REQUIRED.—The receiver

22 shall mail a notice similar to the notice pub23 lished under subparagraph (B)(i) at the time of

24 such publication to any creditor shown on the

25 institution’s books—
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•HR 1713 IH

1 ‘‘(i) at the creditor’s last address ap2 pearing in such books; or

3 ‘‘(ii) upon discovery of the name and

4 address of a claimant not appearing on the

5 institution’s books within 30 days after the

6 discovery of such name and address.

7 ‘‘(4) RULEMAKING AUTHORITY RELATING TO

8 DETERMINATION OF CLAIMS.—

9 ‘‘(A) IN GENERAL.—The Administrator

10 may prescribe regulations regarding the allow11 ance or disallowance of claims by the receiver

12 and providing for administrative determinations

13 of claims and review of such determination.

14 ‘‘(B) FINAL SETTLEMENT PAYMENT PRO15 CEDURE.—

16 ‘‘(i) IN GENERAL.—In the handling of

17 receiverships of insured depository institu18 tions, to maintain essential liquidity and to

19 prevent financial disruption, the Adminis20 trator may, after the declaration of an in21 stitution’s insolvency, settle all uninsured

22 and unsecured claims on the receivership

23 with a final settlement payment which

24 shall constitute full payment and disposi-
49

•HR 1713 IH

1 tion of the Administrator’s obligations to

2 such claimants.

3 ‘‘(ii) FINAL SETTLEMENT PAY4 MENT.—For purposes of clause (i), a final

5 settlement payment shall be payment of an

6 amount equal to the product of the final

7 settlement payment rate and the amount

8 of the uninsured and unsecured claim on

9 the receivership.

10 ‘‘(iii) FINAL SETTLEMENT PAYMENT

11 RATE.—For purposes of clause (ii), the

12 final settlement payment rate shall be a

13 percentage rate reflecting an average of

14 the Administrator’s receivership recovery

15 experience, determined by the Adminis16 trator in such a way that over such time

17 period as the Administrator may determine

18 to be appropriate, the Administrator in

19 total will receive no more or less than the

20 Administrator would have received in total

21 as a general creditor standing in the place

22 of insured depositors in each specific re23 ceivership.

24 ‘‘(iv) AUTHORITY OF ADMINIS25 TRATOR.—The Administrator may under-
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•HR 1713 IH

1 take such supervisory actions and prescribe

2 such regulations as may be necessary to

3 assure that the requirements of this sec4 tion can be implemented with respect to

5 each insured depository institution in the

6 event of its insolvency.

7 ‘‘(5) PROCEDURES FOR DETERMINATION OF

8 CLAIMS.—

9 ‘‘(A) DETERMINATION PERIOD.—

10 ‘‘(i) IN GENERAL.—Before the end of

11 the 180-day period beginning on the date

12 any claim against a depository institution

13 is filed with the Administrator as receiver,

14 the Administrator shall determine whether

15 to allow or disallow the claim and shall no16 tify the claimant of any determination with

17 respect to such claim.

18 ‘‘(ii) EXTENSION OF TIME.—The pe19 riod described in clause (i) may be ex20 tended by a written agreement between the

21 claimant and the Administrator.

22 ‘‘(iii) MAILING OF NOTICE SUFFI23 CIENT.—The requirements of clause (i)

24 shall be deemed to be satisfied if the notice

25 of any determination with respect to any
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•HR 1713 IH

1 claim is mailed to the last address of the

2 claimant which appears—

3 ‘‘(I) on the depository institu4 tion’s books;

5 ‘‘(II) in the claim filed by the

6 claimant; or

7 ‘‘(III) in documents submitted in

8 proof of the claim.

9 ‘‘(iv) CONTENTS OF NOTICE OF DIS10 ALLOWANCE.—If any claim filed under

11 clause (i) is disallowed, the notice to the

12 claimant shall contain—

13 ‘‘(I) a statement of each reason

14 for the disallowance; and

15 ‘‘(II) the procedures available for

16 obtaining agency review of the deter17 mination to disallow the claim or judi18 cial determination of the claim.

19 ‘‘(B) ALLOWANCE OF PROVEN CLAIMS.—

20 The receiver shall allow any claim received on

21 or before the date specified in the notice pub22 lished under paragraph (3)(B)(i) by the receiver

23 from any claimant which is proved to the satis24 faction of the receiver.
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•HR 1713 IH

1 ‘‘(C) DISALLOWANCE OF CLAIMS FILED

2 AFTER END OF FILING PERIOD.—

3 ‘‘(i) IN GENERAL.—Except as pro4 vided in clause (ii), claims filed after the

5 date specified in the notice published under

6 paragraph (3)(B)(i) shall be disallowed

7 and such disallowance shall be final.

8 ‘‘(ii) CERTAIN EXCEPTIONS.—Clause

9 (i) shall not apply with respect to any

10 claim filed by any claimant after the date

11 specified in the notice published under

12 paragraph (3)(B)(i) and such claim may

13 be considered by the receiver if—

14 ‘‘(I) the claimant did not receive

15 notice of the appointment of the re16 ceiver in time to file such claim before

17 such date; and

18 ‘‘(II) such claim is filed in time

19 to permit payment of such claim.

20 ‘‘(D) AUTHORITY TO DISALLOW CLAIMS.—

21 ‘‘(i) IN GENERAL.—The receiver may

22 disallow any portion of any claim by a

23 creditor or claim of security, preference, or

24 priority which is not proved to the satisfac25 tion of the receiver.
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1 ‘‘(ii) PAYMENTS TO LESS THAN

2 FULLY SECURED CREDITORS.—In the case

3 of a claim of a creditor against an insured

4 depository institution which is secured by

5 any property or other asset of such institu6 tion, any receiver appointed for any in7 sured depository institution—

8 ‘‘(I) may treat the portion of

9 such claim which exceeds an amount

10 equal to the fair market value of such

11 property or other asset as an unse12 cured claim against the institution;

13 and

14 ‘‘(II) may not make any payment

15 with respect to such unsecured por16 tion of the claim other than in connec17 tion with the disposition of all claims

18 of unsecured creditors of the institu19 tion.

20 ‘‘(iii) EXCEPTIONS.—No provision of

21 this paragraph shall apply with respect

22 to—

23 ‘‘(I) any extension of credit from

24 any Federal home loan bank or Fed-
54

•HR 1713 IH

1 eral Reserve bank to any insured de2 pository institution; or

3 ‘‘(II) any security interest in the

4 assets of the institution securing any

5 such extension of credit.

6 ‘‘(E) NO JUDICIAL REVIEW OF DETER7 MINATION PURSUANT TO SUBPARAGRAPH (D).—

8 No court may review the Administrator’s deter9 mination pursuant to subparagraph (D) to dis10 allow a claim.

11 ‘‘(F) LEGAL EFFECT OF FILING.—

12 ‘‘(i) STATUTE OF LIMITATION

13 TOLLED.—For purposes of any applicable

14 statute of limitations, the filing of a claim

15 with the receiver shall constitute a com16 mencement of an action.

17 ‘‘(ii) NO PREJUDICE TO OTHER AC18 TIONS.—Subject to paragraph (12), the fil19 ing of a claim with the receiver shall not

20 prejudice any right of the claimant to con21 tinue any action which was filed before the

22 appointment of the receiver.

23 ‘‘(6) PROVISION FOR AGENCY REVIEW OR JUDI24 CIAL DETERMINATION OF CLAIMS.—
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•HR 1713 IH

1 ‘‘(A) IN GENERAL.—Before the end of the

2 60-day period beginning on the earlier of—

3 ‘‘(i) the end of the period described in

4 paragraph (5)(A)(i) with respect to any

5 claim against a depository institution for

6 which the Administrator is receiver; or

7 ‘‘(ii) the date of any notice of dis8 allowance of such claim pursuant to para9 graph (5)(A)(i),

10 the claimant may request administrative review

11 of the claim in accordance with subparagraph

12 (A) or (B) of paragraph (7) or file suit on such

13 claim (or continue an action commenced before

14 the appointment of the receiver) in the district

15 or territorial court of the United States for the

16 district within which the depository institution’s

17 principal place of business is located or the

18 United States District Court for the District of

19 Columbia (and such court shall have jurisdic20 tion to hear such claim).

21 ‘‘(B) STATUTE OF LIMITATIONS.—If any

22 claimant fails to—

23 ‘‘(i) request administrative review of

24 any claim in accordance with subparagraph

25 (A) or (B) of paragraph (7); or
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•HR 1713 IH

1 ‘‘(ii) file suit on such claim (or con2 tinue an action commenced before the ap3 pointment of the receiver),

4 before the end of the 60-day period described in

5 subparagraph (A), the claim shall be deemed to

6 be disallowed (other than any portion of such

7 claim which was allowed by the receiver) as of

8 the end of such period, such disallowance shall

9 be final, and the claimant shall have no further

10 rights or remedies with respect to such claim.

11 ‘‘(7) REVIEW OF CLAIMS.—

12 ‘‘(A) ADMINISTRATIVE HEARING.—

13 ‘‘(i) IN GENERAL.—If any claimant

14 requests review under this subparagraph in

15 lieu of filing or continuing any action

16 under paragraph (6) and the Adminis17 trator agrees to such request, the Adminis18 trator shall consider the claim after oppor19 tunity for a hearing on the record.

20 ‘‘(ii) JUDICIAL REVIEW.—The final

21 determination of the Administrator with

22 respect to a claim considered under clause

23 (i) shall be subject to judicial review under

24 chapter 7 of title 5, United States Code.

25 ‘‘(B) OTHER REVIEW PROCEDURES.—
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1 ‘‘(i) IN GENERAL.—The Administrator

2 shall also establish such alternative dispute

3 resolution processes as may be appropriate

4 for the resolution of claims filed under

5 paragraph (5)(A)(i).

6 ‘‘(ii) CRITERIA.—In establishing alter7 native dispute resolution processes, the Ad8 ministrator shall strive for procedures

9 which are expeditious, fair, independent,

10 and low-cost.

11 ‘‘(iii) VOLUNTARY BINDING OR

12 NONBINDING PROCEDURES.—The Adminis13 trator may establish both binding and

14 nonbinding processes, which may be con15 ducted by any government or private party,

16 but all parties, including the claimant and

17 the Administrator, shall agree to the use of

18 the process in a particular case.

19 ‘‘(iv) CONSIDERATION OF INCEN20 TIVES.—The Administrator shall seek to

21 develop incentives for claimants to partici22 pate in the alternative dispute resolution

23 process.

24 ‘‘(8) EXPEDITED DETERMINATION OF

25 CLAIMS.—
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1 ‘‘(A) ESTABLISHMENT REQUIRED.—The

2 Administrator shall establish a procedure for

3 expedited relief outside of the routine claims

4 process established under paragraph (5) for

5 claimants who—

6 ‘‘(i) allege the existence of legally

7 valid and enforceable or perfected security

8 interests in assets of any depository insti9 tution for which the Administrator has

10 been appointed receiver; and

11 ‘‘(ii) allege that irreparable injury will

12 occur if the routine claims procedure is fol13 lowed.

14 ‘‘(B) DETERMINATION PERIOD.—Before

15 the end of the 90-day period beginning on the

16 date any claim is filed in accordance with the

17 procedures established pursuant to subpara18 graph (A), the Administrator shall—

19 ‘‘(i) determine—

20 ‘‘(I) whether to allow or disallow

21 such claim; or

22 ‘‘(II) whether such claim should

23 be determined pursuant to the proce24 dures established pursuant to para25 graph (5);
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1 ‘‘(ii) notify the claimant of the deter2 mination; and

3 ‘‘(iii) if the claim is disallowed, pro4 vide—

5 ‘‘(I) a written explanation of each

6 reason for the disallowance; and

7 ‘‘(II) a written description of the

8 procedure for obtaining agency review

9 of the determination or judicial deter10 mination of the claim.

11 ‘‘(C) PERIOD FOR FILING OR RENEWING

12 SUIT.—Any claimant who files a request for ex13 pedited relief shall be permitted to file a suit,

14 or to continue a suit filed before the appoint15 ment of the receiver, seeking a determination of

16 the claimant’s rights with respect to such secu17 rity interest after the earlier of—

18 ‘‘(i) the end of the 90-day period be19 ginning on the date of the filing of a re20 quest for expedited relief; or

21 ‘‘(ii) the date the Administrator de22 nies the claim.

23 ‘‘(D) STATUTE OF LIMITATIONS.—If an

24 action described in subparagraph (C) is not

25 filed, or the motion to renew a previously filed
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1 suit is not made, before the end of the 30-day

2 period beginning on the date on which such ac3 tion or motion may be filed in accordance with

4 subparagraph (B), the claim shall be deemed to

5 be disallowed as of the end of such period

6 (other than any portion of such claim which

7 was allowed by the receiver), such disallowance

8 shall be final, and the claimant shall have no

9 further rights or remedies with respect to such

10 claim.

11 ‘‘(E) LEGAL EFFECT OF FILING.—

12 ‘‘(i) STATUTE OF LIMITATION

13 TOLLED.—For purposes of any applicable

14 statute of limitations, the filing of a claim

15 with the receiver shall constitute a com16 mencement of an action.

17 ‘‘(ii) NO PREJUDICE TO OTHER AC18 TIONS.—Subject to paragraph (12), the fil19 ing of a claim with the receiver shall not

20 prejudice any right of the claimant to con21 tinue any action which was filed before the

22 appointment of the receiver.

23 ‘‘(9) AGREEMENT AS BASIS OF CLAIM.—

24 ‘‘(A) AGREEMENTS AGAINST INTERESTS

25 OF ADMINISTRATOR.—No agreement which
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1 tends to diminish or defeat the interest of the

2 Agency in any asset acquired by the Agency

3 under this section, either as security for a loan

4 or by purchase or as receiver of any insured de5 pository institution, shall be valid against the

6 Agency or form the basis of, or substantially

7 comprise, a claim against the receiver or the

8 Agency unless such agreement—

9 ‘‘(i) is in writing;

10 ‘‘(ii) was executed by the depository

11 institution and any person claiming an ad12 verse interest under the agreement, includ13 ing the obligor, contemporaneously with

14 the acquisition of the asset by the deposi15 tory institution;

16 ‘‘(iii) was approved by the board of di17 rectors of the depository institution or the

18 institution’s loan committee, and the ap19 proval is reflected in the minutes of such

20 board of directors or committee; and

21 ‘‘(iv) has been, continuously, from the

22 time of the execution of the agreement, an

23 official record of the depository institution.

24 ‘‘(B) EXCEPTION TO CONTEMPORANEOUS

25 EXECUTION REQUIREMENT.—Notwithstanding
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1 section 21D(e)(2), any agreement relating to an

2 extension of credit between a Federal home loan

3 bank or Federal Reserve bank and any insured

4 depository institution which was executed before

5 the extension of credit by such bank to such in6 stitution shall be treated as having been exe7 cuted contemporaneously with such extension of

8 credit for purposes of subparagraph (A).

9 ‘‘(10) PAYMENT OF CLAIMS.—

10 ‘‘(A) IN GENERAL.—The receiver may, in

11 the receiver’s discretion and to the extent funds

12 are available, pay creditor claims which are al13 lowed by the receiver, approved by the Adminis14 trator pursuant to a final determination pursu15 ant to paragraph (7) or (8), or determined by

16 the final judgment of any court of competent

17 jurisdiction in such manner and amounts as are

18 authorized under this Act.

19 ‘‘(B) PAYMENT OF DIVIDENDS ON

20 CLAIMS.—The receiver may, in the receiver’s

21 sole discretion, pay dividends on proved claims

22 at any time, and no liability shall attach to the

23 Administrator (in such Administrator’s capacity

24 as an agency or receiver), by reason of any such

25 payment, for failure to pay dividends to a
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1 claimant whose claim is not proved at the time

2 of any such payment.

3 ‘‘(11) DISTRIBUTION OF ASSETS.—

4 ‘‘(A) SUBROGATED CLAIMS; CLAIMS OF

5 UNINSURED DEPOSITORS AND OTHER CREDI6 TORS.—The receiver shall—

7 ‘‘(i) retain for the account of the Fed8 eral Deposit Insurance Corporation such

9 portion of the amounts realized from any

10 liquidation as may be necessary to satisfy

11 the claim of the Corporation under section

12 11(g) of the Federal Deposit Insurance

13 Act; and

14 ‘‘(ii) pay to depositors and other

15 creditors the net amounts available for dis16 tribution to them.

17 ‘‘(B) DISTRIBUTION TO SHAREHOLDERS

18 OF AMOUNTS REMAINING AFTER PAYMENT OF

19 ALL OTHER CLAIMS AND EXPENSES.—In any

20 case in which funds remain after all depositors,

21 creditors, other claimants, and administrative

22 expenses are paid, the receiver shall distribute

23 such funds to the depository institution’s share24 holders or members together with the account25 ing report required under paragraph (15)(B).
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1 ‘‘(12) SUSPENSION OF LEGAL ACTIONS.—

2 ‘‘(A) IN GENERAL.—After the appointment

3 of a conservator or receiver for an insured de4 pository institution, the conservator or receiver

5 may request a stay for a period not to exceed—

6 ‘‘(i) 45 days, in the case of any con7 servator; and

8 ‘‘(ii) 90 days, in the case of any re9 ceiver,

10 in any judicial action or proceeding to which

11 such institution is or becomes a party.

12 ‘‘(B) GRANT OF STAY BY ALL COURTS RE13 QUIRED.—Upon receipt of a request by any

14 conservator or receiver pursuant to subpara15 graph (A) for a stay of any judicial action or

16 proceeding in any court with jurisdiction of

17 such action or proceeding, the court shall grant

18 such stay as to all parties.

19 ‘‘(13) ADDITIONAL RIGHTS AND DUTIES.—

20 ‘‘(A) PRIOR FINAL ADJUDICATION.—The

21 Administrator shall abide by any final judgment

22 of any court of competent jurisdiction which

23 was rendered before the appointment of the Ad24 ministrator as conservator or receiver.
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1 ‘‘(B) RIGHTS AND REMEDIES OF CON2 SERVATOR OR RECEIVER.—In the event of any

3 appealable judgment, the Administrator as con4 servator or receiver shall—

5 ‘‘(i) have all the rights and remedies

6 available to the insured depository institu7 tion (before the appointment of such con8 servator or receiver) and the Administrator

9 in its capacity as an agency, including re10 moval to Federal court and all appellate

11 rights; and

12 ‘‘(ii) not be required to post any bond

13 in order to pursue such remedies.

14 ‘‘(C) NO ATTACHMENT OR EXECUTION.—

15 No attachment or execution may issue by any

16 court upon assets in the possession of the re17 ceiver.

18 ‘‘(D) LIMITATION ON JUDICIAL REVIEW.—

19 Except as otherwise provided in this subsection,

20 no court shall have jurisdiction over—

21 ‘‘(i) any claim or action for payment

22 from, or any action seeking a determina23 tion of rights with respect to, the assets of

24 any depository institution for which the

25 Administrator has been appointed receiver,
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1 including assets which the Administrator

2 may acquire from itself as such receiver; or

3 ‘‘(ii) any claim relating to any act or

4 omission of such institution or the Admin5 istrator as receiver.

6 ‘‘(E) DISPOSITION OF ASSETS.—In exercis7 ing any right, power, privilege, or authority as

8 conservator or receiver in connection with any

9 sale or disposition of assets of any insured de10 pository institution for which the Administrator

11 has been appointed conservator or receiver, in12 cluding any sale or disposition of assets ac13 quired by the Administrator under paragraph

14 (14), the Administrator shall conduct the oper15 ations of the Agency in a manner which—

16 ‘‘(i) maximizes the net present value

17 return from the sale or disposition of such

18 assets;

19 ‘‘(ii) minimizes the amount of any loss

20 realized in the resolution of cases;

21 ‘‘(iii) ensures adequate competition

22 and fair and consistent treatment of

23 offerors;
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•HR 1713 IH

1 ‘‘(iv) prohibits discrimination on the

2 basis of race, sex, or ethnic groups in the

3 solicitation and consideration of offers; and

4 ‘‘(v) maximizes the preservation of the

5 availability and affordability of residential

6 real property for low- and moderate-income

7 individuals.

8 ‘‘(14) STATUTE OF LIMITATIONS FOR ACTIONS

9 BROUGHT BY CONSERVATOR OR RECEIVER.—

10 ‘‘(A) IN GENERAL.—Notwithstanding any

11 provision of any contract, the applicable statute

12 of limitations with regard to any action brought

13 by the Administrator as conservator or receiver

14 shall be—

15 ‘‘(i) in the case of any contract claim,

16 the longer of—

17 ‘‘(I) the 6-year period beginning

18 on the date the claim accrues; or

19 ‘‘(II) the period applicable under

20 State law; and

21 ‘‘(ii) in the case of any tort claim, the

22 longer of—

23 ‘‘(I) the 3-year period beginning

24 on the date the claim accrues; or
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1 ‘‘(II) the period applicable under

2 State law.

3 ‘‘(B) DETERMINATION OF THE DATE ON

4 WHICH A CLAIM ACCRUES.—For purposes of

5 subparagraph (A), the date on which the stat6 ute of limitation begins to run on any claim de7 scribed in such subparagraph shall be the later

8 of—

9 ‘‘(i) the date of the appointment of

10 the Administrator as conservator or re11 ceiver; or

12 ‘‘(ii) the date on which the cause of

13 action accrues.

14 ‘‘(15) ACCOUNTING AND RECORDKEEPING RE15 QUIREMENTS.—

16 ‘‘(A) IN GENERAL.—The Administrator as

17 conservator or receiver shall, consistent with the

18 accounting and reporting practices and proce19 dures established by the Administrator, main20 tain a full accounting of each conservatorship

21 and receivership or other disposition of institu22 tions in default.

23 ‘‘(B) ANNUAL ACCOUNTING OR REPORT.—

24 With respect to each conservatorship or receiv25 ership to which the Administrator was ap-
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1 pointed, the Administrator shall make an an2 nual accounting or report, as appropriate, avail3 able to the Secretary of the Treasury, the

4 Comptroller General of the United States, and

5 the authority which appointed the Adminis6 trator as conservator or receiver.

7 ‘‘(C) AVAILABILITY OF REPORTS.—Any re8 port prepared pursuant to subparagraph (B)

9 shall be made available by the Administrator

10 upon request to any shareholder of the deposi11 tory institution for which the Administrator was

12 appointed conservator or receiver or any other

13 member of the public.

14 ‘‘(D) RECORDKEEPING REQUIREMENT.—

15 After the end of the 6-year period beginning on

16 the date the Administrator is appointed as re17 ceiver of an insured depository institution, the

18 Administrator may destroy any records of such

19 institution which the Administrator, in the Ad20 ministrator’s discretion, determines to be un21 necessary unless—

22 ‘‘(i) the Administrator is directed not

23 to do so by a court of competent jurisdic24 tion or governmental agency; or
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1 ‘‘(ii) the destruction of such record is

2 prohibited by law.

3 ‘‘(16) CONTRACTS WITH STATE HOUSING FI4 NANCE AUTHORITIES.—

5 ‘‘(A) IN GENERAL.—The Administrator

6 may enter into contracts with any State hous7 ing finance authority for the sale of mortgage8 related assets (as such terms are defined in sec9 tion 1301 of the Financial Institutions Reform,

10 Recovery, and Enforcement Act of 1989) of any

11 depository institution in default (including as12 sets and liabilities associated with any trust

13 business), such contracts to be effective in ac14 cordance with their terms without any further

15 approval, assignment, or consent with respect

16 thereto.

17 ‘‘(B) FACTORS TO CONSIDER.—In evaluat18 ing the disposition of mortgage-related assets to

19 any State housing finance authority the Admin20 istrator shall consider—

21 ‘‘(i) the State housing finance

22 authority’s ability to acquire and service

23 current, delinquent, and defaulted mort24 gage related assets;
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1 ‘‘(ii) the State housing finance

2 authority’s ability to further national hous3 ing policies;

4 ‘‘(iii) the State housing finance

5 authority’s sensitivity to the impact of the

6 sale of mortgage related assets upon the

7 State and local communities;

8 ‘‘(iv) the costs to the Federal Govern9 ment associated with alternative ownership

10 or dispositions of the mortgage related as11 sets;

12 ‘‘(v) the minimization of future guar13 anties which may be required of the Fed14 eral Government;

15 ‘‘(vi) the maximization of mortgage

16 related asset values; and

17 ‘‘(vii) the utilization of institutions

18 currently established in mortgage related

19 asset market activities.

20 ‘‘(17) FRAUDULENT TRANSFERS.—

21 ‘‘(A) IN GENERAL.—The Administrator, as

22 conservator or receiver for any insured deposi23 tory institution, and any conservator appointed

24 by the Comptroller of the Currency or the Di25 rector of the Office of Thrift Supervision may
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1 avoid a transfer of any interest of an institu2 tion-affiliated party, or any person who the Ad3 ministrator or conservator determines is a debt4 or of the institution, in property, or any obliga5 tion incurred by such party or person, that was

6 made within 5 years of the date on which the

7 Administrator or conservator was appointed

8 conservator or receiver if such party or person

9 voluntarily or involuntarily made such transfer

10 or incurred such liability with the intent to

11 hinder, delay, or defraud the insured depository

12 institution, the Administrator or other con13 servator, or any other appropriate Federal

14 banking agency.

15 ‘‘(B) RIGHT OF RECOVERY.—To the extent

16 a transfer is avoided under subparagraph (A),

17 the Administrator or any conservator described

18 in such subparagraph may recover, for the ben19 efit of the insured depository institution, the

20 property transferred, or, if a court so orders,

21 the value of such property (at the time of such

22 transfer) from—

23 ‘‘(i) the initial transferee of such

24 transfer or the institution-affiliated party
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1 or person for whose benefit such transfer

2 was made; or

3 ‘‘(ii) any immediate or mediate trans4 feree of any such initial transferee.

5 ‘‘(C) RIGHTS OF TRANSFEREE OR OBLI6 GEE.—The Administrator or any conservator

7 described in subparagraph (A) may not recover

8 under subparagraph (B) from—

9 ‘‘(i) any transferee that takes for

10 value, including satisfaction or securing of

11 a present or antecedent debt, in good faith;

12 or

13 ‘‘(ii) any immediate or mediate good

14 faith transferee of such transferee.

15 ‘‘(D) RIGHTS UNDER THIS PARAGRAPH.—

16 The rights under this paragraph of the Admin17 istrator and any conservator described in sub18 paragraph (A) shall be superior to any rights of

19 a trustee or any other party (other than any

20 party which is a Federal agency) under title 11,

21 United States Code.

22 ‘‘(18) ATTACHMENT OF ASSETS AND OTHER IN23 JUNCTIVE RELIEF.—Subject to paragraph (19), any

24 court of competent jurisdiction may, at the request

25 of—
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1 ‘‘(A) the Administrator (in the Administra2 tor’s capacity as conservator or receiver for any

3 insured depository institution or in the Admin4 istrator’s capacity as an agency with respect to

5 any asset acquired by, or liability assumed by,

6 the Administrator under this section, section

7 21D of this Act, or section 13 of the Federal

8 Deposit Insurance Act); or

9 ‘‘(B) any conservator appointed by the

10 Comptroller of the Currency or the Director of

11 the Office of Thrift Supervision,

12 issue an order in accordance with Rule 65 of the

13 Federal Rules of Civil Procedure, including an order

14 placing the assets of any person designated by the

15 Administrator or such conservator under the control

16 of the court and appointing a trustee to hold such

17 assets.

18 ‘‘(19) STANDARDS.—

19 ‘‘(A) SHOWING.—Rule 65 of the Federal

20 Rules of Civil Procedure shall apply with re21 spect to any proceeding under paragraph (18)

22 without regard to the requirement of such rule

23 that the applicant show that the injury, loss, or

24 damage is irreparable and immediate.
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1 ‘‘(B) STATE PROCEEDING.—If, in the case

2 of any proceeding in a State court, the court

3 determines that rules of civil procedure avail4 able under the laws of such State provide sub5 stantially similar protections to such party’s

6 right to due process as Rule 65 (as modified

7 with respect to such proceeding by subpara8 graph (A)), the relief sought by the Adminis9 trator or a conservator pursuant to paragraph

10 (18) may be requested under the laws of such

11 State.

12 ‘‘(c) PROVISIONS RELATING TO CONTRACTS EN13 TERED INTO BEFORE APPOINTMENT OF CONSERVATOR

14 OR RECEIVER.—

15 ‘‘(1) AUTHORITY TO REPUDIATE CONTRACTS.—

16 In addition to any other rights a conservator or re17 ceiver may have, the conservator or receiver for any

18 insured depository institution may disaffirm or repu19 diate any contract or lease—

20 ‘‘(A) to which such institution is a party;

21 ‘‘(B) the performance of which the con22 servator or receiver, in the conservator’s or re23 ceiver’s discretion, determines to be burden24 some; and
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1 ‘‘(C) the disaffirmance or repudiation of

2 which the conservator or receiver determines, in

3 the conservator’s or receiver’s discretion, will

4 promote the orderly administration of the insti5 tution’s affairs.

6 ‘‘(2) TIMING OF REPUDIATION.—The conserva7 tor or receiver appointed for any insured depository

8 institution in accordance with subsection (a) shall

9 determine whether or not to exercise the rights of

10 repudiation under this subsection within a reason11 able period following such appointment.

12 ‘‘(3) CLAIMS FOR DAMAGES FOR REPUDI13 ATION.—

14 ‘‘(A) IN GENERAL.—Except as otherwise

15 provided in subparagraph (C) and paragraphs

16 (4), (5), and (6), the liability of the conservator

17 or receiver for the disaffirmance or repudiation

18 of any contract pursuant to paragraph (1) shall

19 be—

20 ‘‘(i) limited to actual direct compen21 satory damages; and

22 ‘‘(ii) determined as of—

23 ‘‘(I) the date of the appointment

24 of the conservator or receiver; or
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1 ‘‘(II) in the case of any contract

2 or agreement referred to in paragraph

3 (8), the date of the disaffirmance or

4 repudiation of such contract or agree5 ment.

6 ‘‘(B) NO LIABILITY FOR OTHER DAM7 AGES.—For purposes of subparagraph (A), the

8 term ‘actual direct compensatory damages’ does

9 not include—

10 ‘‘(i) punitive or exemplary damages;

11 ‘‘(ii) damages for lost profits or op12 portunity; or

13 ‘‘(iii) damages for pain and suffering.

14 ‘‘(C) MEASURE OF DAMAGES FOR REPUDI15 ATION OF FINANCIAL CONTRACTS.—In the case

16 of any qualified financial contract or agreement

17 to which paragraph (8) applies, compensatory

18 damages shall be—

19 ‘‘(i) deemed to include normal and

20 reasonable costs of cover or other reason21 able measures of damages utilized in the

22 industries for such contract and agreement

23 claims; and
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1 ‘‘(ii) paid in accordance with this sub2 section and subsection (g) except as other3 wise specifically provided in this section.

4 ‘‘(4) LEASES UNDER WHICH THE INSTITUTION

5 IS THE LESSEE.—

6 ‘‘(A) IN GENERAL.—If the conservator or

7 receiver disaffirms or repudiates a lease under

8 which the insured depository institution was the

9 lessee, the conservator or receiver shall not be

10 liable for any damages (other than damages de11 termined pursuant to subparagraph (B)) for the

12 disaffirmance or repudiation of such lease.

13 ‘‘(B) PAYMENTS OF RENT.—Notwithstand14 ing subparagraph (A), the lessor under a lease

15 to which such subparagraph applies shall—

16 ‘‘(i) be entitled to the contractual rent

17 accruing before the later of the date—

18 ‘‘(I) the notice of disaffirmance

19 or repudiation is mailed; or

20 ‘‘(II) the disaffirmance or repudi21 ation becomes effective,

22 unless the lessor is in default or breach of

23 the terms of the lease;
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1 ‘‘(ii) have no claim for damages under

2 any acceleration clause or other penalty

3 provision in the lease; and

4 ‘‘(iii) have a claim for any unpaid

5 rent, subject to all appropriate offsets and

6 defenses, due as of the date of the appoint7 ment which shall be paid in accordance

8 with this subsection and subsection (i).

9 ‘‘(5) LEASES UNDER WHICH THE INSTITUTION

10 IS THE LESSOR.—

11 ‘‘(A) IN GENERAL.—If the conservator or

12 receiver repudiates an unexpired written lease

13 of real property of the insured depository insti14 tution under which the institution is the lessor

15 and the lessee is not, as of the date of such re16 pudiation, in default, the lessee under such

17 lease may either—

18 ‘‘(i) treat the lease as terminated by

19 such repudiation; or

20 ‘‘(ii) remain in possession of the lease21 hold interest for the balance of the term of

22 the lease unless the lessee defaults under

23 the terms of the lease after the date of

24 such repudiation.
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1 ‘‘(B) PROVISIONS APPLICABLE TO LESSEE

2 REMAINING IN POSSESSION.—If any lessee

3 under a lease described in subparagraph (A) re4 mains in possession of a leasehold interest pur5 suant to clause (ii) of such subparagraph—

6 ‘‘(i) the lessee—

7 ‘‘(I) shall continue to pay the

8 contractual rent pursuant to the

9 terms of the lease after the date of

10 the repudiation of such lease;

11 ‘‘(II) may offset against any rent

12 payment which accrues after the date

13 of the repudiation of the lease, any

14 damages which accrue after such date

15 due to the nonperformance of any ob16 ligation of the insured depository in17 stitution under the lease after such

18 date; and

19 ‘‘(ii) the conservator or receiver shall

20 not be liable to the lessee for any damages

21 arising after such date as a result of the

22 repudiation other than the amount of any

23 offset allowed under clause (i)(II).

24 ‘‘(6) CONTRACTS FOR THE SALE OF REAL

25 PROPERTY.—
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1 ‘‘(A) IN GENERAL.—If the conservator or

2 receiver repudiates any contract (which meets

3 the requirements of each clause of subsection

4 (b)(9)(A)) for the sale of real property and the

5 purchaser of such real property under such con6 tract is in possession and is not, as of the date

7 of such repudiation, in default, such purchaser

8 may either—

9 ‘‘(i) treat the contract as terminated

10 by such repudiation; or

11 ‘‘(ii) remain in possession of such real

12 property.

13 ‘‘(B) PROVISIONS APPLICABLE TO PUR14 CHASER REMAINING IN POSSESSION.—If any

15 purchaser of real property under any contract

16 described in subparagraph (A) remains in pos17 session of such property pursuant to clause (ii)

18 of such subparagraph—

19 ‘‘(i) the purchaser—

20 ‘‘(I) shall continue to make all

21 payments due under the contract after

22 the date of the repudiation of the con23 tract; and

24 ‘‘(II) may offset against any such

25 payments any damages which accrue
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1 after such date due to the non2 performance (after such date) of any

3 obligation of the depository institution

4 under the contract; and

5 ‘‘(ii) the conservator or receiver

6 shall—

7 ‘‘(I) not be liable to the pur8 chaser for any damages arising after

9 such date as a result of the repudi10 ation other than the amount of any

11 offset allowed under clause (i)(II);

12 ‘‘(II) deliver title to the pur13 chaser in accordance with the provi14 sions of the contract; and

15 ‘‘(III) have no obligation under

16 the contract other than the perform17 ance required under subclause (II).

18 ‘‘(C) ASSIGNMENT AND SALE ALLOWED.—

19 ‘‘(i) IN GENERAL.—No provision of

20 this paragraph shall be construed as limit21 ing the right of the conservator or receiver

22 to assign the contract described in sub23 paragraph (A) and sell the property sub24 ject to the contract and the provisions of

25 this paragraph.
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1 ‘‘(ii) NO LIABILITY AFTER ASSIGN2 MENT AND SALE.—If an assignment and

3 sale described in clause (i) is con4 summated, the conservator or receiver

5 shall have no further liability under the

6 contract described in subparagraph (A) or

7 with respect to the real property which was

8 the subject of such contract.

9 ‘‘(7) PROVISIONS APPLICABLE TO SERVICE CON10 TRACTS.—

11 ‘‘(A) SERVICES PERFORMED BEFORE AP12 POINTMENT.—In the case of any contract for

13 services between any person and any insured

14 depository institution for which the Adminis15 trator has been appointed conservator or re16 ceiver, any claim of such person for services

17 performed before the appointment of the con18 servator or the receiver shall be—

19 ‘‘(i) a claim to be paid in accordance

20 with subsections (b) and (g); and

21 ‘‘(ii) deemed to have arisen as of the

22 date the conservator or receiver was ap23 pointed.

24 ‘‘(B) SERVICES PERFORMED AFTER AP25 POINTMENT AND PRIOR TO REPUDIATION.—If,
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1 in the case of any contract for services de2 scribed in subparagraph (A), the conservator or

3 receiver accepts performance by the other per4 son before the conservator or receiver makes

5 any determination to exercise the right of repu6 diation of such contract under this section—

7 ‘‘(i) the other party shall be paid

8 under the terms of the contract for the

9 services performed; and

10 ‘‘(ii) the amount of such payment

11 shall be treated as an administrative ex12 pense of the conservatorship or receiver13 ship.

14 ‘‘(C) ACCEPTANCE OF PERFORMANCE NO

15 BAR TO SUBSEQUENT REPUDIATION.—The ac16 ceptance by any conservator or receiver of serv17 ices referred to in subparagraph (B) in connec18 tion with a contract described in such subpara19 graph shall not affect the right of the conserva20 tor or receiver to repudiate such contract under

21 this section at any time after such performance.

22 ‘‘(8) CERTAIN QUALIFIED FINANCIAL CON23 TRACTS.—

24 ‘‘(A) RIGHTS OF PARTIES TO CON25 TRACTS.—Subject to paragraph (10) of this
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1 subsection and notwithstanding any other provi2 sion of this Act (other than subsection (b)(9)

3 and section 21D(e)), any other Federal law, or

4 the law of any State, no person shall be stayed

5 or prohibited from exercising—

6 ‘‘(i) any right to cause the termi7 nation or liquidation of any qualified finan8 cial contract with an insured depository in9 stitution which arises upon the appoint10 ment of the Administrator as receiver for

11 such institution at any time after such ap12 pointment;

13 ‘‘(ii) any right under any security ar14 rangement relating to any contract or

15 agreement described in clause (i); or

16 ‘‘(iii) any right to offset or net out

17 any termination value, payment amount, or

18 other transfer obligation arising under or

19 in connection with 1 or more contracts and

20 agreements described in clause (i), includ21 ing any master agreement for such con22 tracts or agreements.

23 ‘‘(B) APPLICABILITY OF OTHER PROVI24 SIONS.—Subsection (b)(12) shall apply in the

25 case of any judicial action or proceeding
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•HR 1713 IH

1 brought against any receiver referred to in sub2 paragraph (A), or the insured depository insti3 tution for which such receiver was appointed,

4 by any party to a contract or agreement de5 scribed in subparagraph (A)(i) with such insti6 tution.

7 ‘‘(C) CERTAIN TRANSFERS NOT AVOID8 ABLE.—

9 ‘‘(i) IN GENERAL.—Notwithstanding

10 paragraph (11), the Administrator, wheth11 er acting as such or as conservator or re12 ceiver of an insured depository institution,

13 may not avoid any transfer of money or

14 other property in connection with any

15 qualified financial contract with an insured

16 depository institution.

17 ‘‘(ii) EXCEPTION FOR CERTAIN

18 TRANSFERS.—Clause (i) shall not apply to

19 any transfer of money or other property in

20 connection with any qualified financial con21 tract with an insured depository institution

22 if the Administrator determines that the

23 transferee had actual intent to hinder,

24 delay, or defraud such institution, the

25 creditors of such institution, or any con-
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•HR 1713 IH

1 servator or receiver appointed for such in2 stitution.

3 ‘‘(D) CERTAIN CONTRACTS AND AGREE4 MENTS DEFINED.—For purposes of this sub5 section—

6 ‘‘(i) QUALIFIED FINANCIAL CON7 TRACT.—The term ‘qualified financial con8 tract’ means any securities contract, com9 modity contract, forward contract, repur10 chase agreement, swap agreement, and any

11 similar agreement that the Administrator

12 determines by regulation to be a qualified

13 financial contract for purposes of this

14 paragraph.

15 ‘‘(ii) SECURITIES CONTRACT.—The

16 term ‘securities contract’—

17 ‘‘(I) has the meaning given to

18 such term in section 741(7) of title

19 11, United States Code, except that

20 the term ‘security’ (as used in such

21 section) shall be deemed to include

22 any mortgage loan, any mortgage-re23 lated security (as defined in section

24 3(a)(41) of the Securities Exchange

25 Act of 1934), and any interest in any
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1 mortgage loan or mortgage-related se2 curity; and

3 ‘‘(II) does not include any par4 ticipation in a commercial mortgage

5 loan unless the Administrator deter6 mines by regulation, resolution, or

7 order to include any such participa8 tion within the meaning of such term.

9 ‘‘(iii) COMMODITY CONTRACT.—The

10 term ‘commodity contract’ has the mean11 ing given to such term in section 761(4) of

12 title 11, United States Code.

13 ‘‘(iv) FORWARD CONTRACT.—The

14 term ‘forward contract’ has the meaning

15 given to such term in section 101(24) of

16 title 11, United States Code.

17 ‘‘(v) REPURCHASE AGREEMENT.—The

18 term ‘repurchase agreement’—

19 ‘‘(I) has the meaning given to

20 such term in section 101(41) of title

21 11, the United States Code, except

22 that the items (as described in such

23 section) which may be subject to any

24 such agreement shall be deemed to in25 clude mortgage-related securities (as
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1 such term is defined in section

2 3(a)(41) of the Securities Exchange

3 Act of 1934), any mortgage loan, and

4 any interest in any mortgage loan;

5 and

6 ‘‘(II) does not include any par7 ticipation in a commercial mortgage

8 loan unless the Administrator deter9 mines by regulation, resolution, or

10 order to include any such participa11 tion within the meaning of such term.

12 ‘‘(vi) SWAP AGREEMENT.—The term

13 ‘swap agreement’—

14 ‘‘(I) means any agreement, in15 cluding the terms and conditions in16 corporated by reference in any such

17 agreement, which is a rate swap

18 agreement, basis swap, commodity

19 swap, forward rate agreement, inter20 est rate future, interest rate option

21 purchased, forward foreign exchange

22 agreement, rate cap agreement, rate

23 floor agreement, rate collar agree24 ment, currency swap agreement,

25 cross-currency rate swap agreement,
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1 currency future, or currency option

2 purchased or any other similar agree3 ment, and

4 ‘‘(II) includes any combination of

5 such agreements and any option to

6 enter into any such agreement.

7 ‘‘(vii) TREATMENT OF MASTER

8 AGREEMENT AS 1 SWAP AGREEMENT.—

9 Any master agreement for any agreements

10 described in clause (vi)(I) together with all

11 supplements to such master agreement

12 shall be treated as 1 swap agreement.

13 ‘‘(viii) TRANSFER.—The term ‘trans14 fer’ has the meaning given to such term in

15 section 101(50) of title 11, United States

16 Code.

17 ‘‘(E) CERTAIN PROTECTIONS IN EVENT OF

18 APPOINTMENT OF CONSERVATOR.—Notwith19 standing any other provision of this Act (other

20 than paragraph (12) of this subsection and sub21 section (b)(9)), any other Federal law, or the

22 law of any State, no person shall be stayed or

23 prohibited from exercising—

24 ‘‘(i) any right such person has to

25 cause the termination, liquidation, or accel-
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1 eration of any qualified financial contract

2 with a depository institution in a

3 conservatorship based upon a default

4 under such financial contract which is en5 forceable under applicable noninsolvency

6 law;

7 ‘‘(ii) any right under any security ar8 rangement relating to such qualified finan9 cial contracts; or

10 ‘‘(iii) any right to offset or net out

11 any termination values, payment amounts,

12 or other transfer obligations arising under

13 or in connection with such qualified finan14 cial contracts.

15 ‘‘(9) TRANSFER OF QUALIFIED FINANCIAL CON16 TRACTS.—In making any transfer of assets or liabil17 ities of a depository institution in default which in18 cludes any qualified financial contract, the conserva19 tor or receiver for such depository institution shall

20 either—

21 ‘‘(A) transfer to 1 depository institution

22 (other than a depository institution in de23 fault)—

24 ‘‘(i) all qualified financial contracts

25 between—
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1 ‘‘(I) any person or any affiliate of

2 such person; and

3 ‘‘(II) the depository institution in

4 default;

5 ‘‘(ii) all claims of such person or any

6 affiliate of such person against such depos7 itory institution under any such contract

8 (other than any claim which, under the

9 terms of any such contract, is subordinated

10 to the claims of general unsecured credi11 tors of such institution);

12 ‘‘(iii) all claims of such depository in13 stitution against such person or any affili14 ate of such person under any such con15 tract; and

16 ‘‘(iv) all property securing any claim

17 described in clause (ii) or (iii) under any

18 such contract; or

19 ‘‘(B) transfer none of the financial con20 tracts, claims, or property referred to in sub21 paragraph (A) (with respect to such person and

22 any affiliate of such person).

23 ‘‘(10) NOTIFICATION OF TRANSFER.—

24 ‘‘(A) IN GENERAL.—If—
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1 ‘‘(i) the conservator or receiver for an

2 insured depository institution in default

3 makes any transfer of the assets and liabil4 ities of such institution; and

5 ‘‘(ii) the transfer includes any quali6 fied financial contract,

7 the conservator or receiver shall use such con8 servator’s or receiver’s best efforts to notify any

9 person who is a party to any such contract of

10 such transfer by 12:00, noon (local time) on the

11 business day following such transfer.

12 ‘‘(B) BUSINESS DAY DEFINED.—For pur13 poses of this paragraph, the term ‘business day’

14 means any day other than any Saturday, Sun15 day, or any day on which either the New York

16 Stock Exchange or the Federal Reserve Bank

17 of New York is closed.

18 ‘‘(11) CERTAIN SECURITY INTERESTS NOT

19 AVOIDABLE.—No provision of this subsection shall

20 be construed as permitting the avoidance of any le21 gally enforceable or perfected security interest in any

22 of the assets of any depository institution except

23 where such an interest is taken in contemplation of

24 the institution’s insolvency or with the intent to
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1 hinder, delay, or defraud the institution or the credi2 tors of such institution.

3 ‘‘(12) AUTHORITY TO ENFORCE CONTRACTS.—

4 ‘‘(A) IN GENERAL.—The conservator or re5 ceiver may enforce any contract, other than a

6 director’s or officer’s liability insurance contract

7 or a depository institution bond, entered into by

8 the depository institution notwithstanding any

9 provision of the contract providing for termi10 nation, default, acceleration, or exercise of

11 rights upon, or solely by reason of, insolvency

12 or the appointment of a conservator or receiver.

13 ‘‘(B) CERTAIN RIGHTS NOT AFFECTED.—

14 No provision of this paragraph may be con15 strued as impairing or affecting any right of the

16 conservator or receiver to enforce or recover

17 under a directors or officers liability insurance

18 contract or depository institution bond under

19 other applicable law.

20 ‘‘(13) EXCEPTION FOR FEDERAL RESERVE AND

21 FEDERAL HOME LOAN BANKS.—No provision of this

22 subsection shall apply with respect to—

23 ‘‘(A) any extension of credit from any Fed24 eral home loan bank or Federal Reserve bank

25 to any insured depository institution; or
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1 ‘‘(B) any security interest in the assets of

2 the institution securing any such extension of

3 credit.

4 ‘‘(d) PAYMENT OF INSURED DEPOSITS.—

5 ‘‘(1) IN GENERAL.—In case of the liquidation

6 of, or other closing or winding up of the affairs of,

7 any insured depository institution, payment of the

8 insured deposits in such institution shall be made by

9 the Administrator as soon as possible, subject to the

10 provisions of subsection (e), either by cash or by

11 making available to each depositor a transferred de12 posit in a new insured depository institution in the

13 same community or in another insured depository in14 stitution in an amount equal to the insured deposit

15 of such depositor.

16 ‘‘(2) REQUEST FOR FUNDS FROM FDIC.—

17 ‘‘(A) IN GENERAL.—Upon making a deter18 mination pursuant to paragraph (1) to pay in19 sured deposits at an insured depository institu20 tion which is a Bank Insurance Fund member

21 or a Savings Association Insurance Fund mem22 ber (including any institution for which the

23 Resolution Trust Corporation had been ap24 pointed conservator or receiver under section

25 21A, as in effect before the date of the enact-
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•HR 1713 IH

1 ment of the Revitalization Depository Institu2 tion Liquidation Procedures Act of 1993), the

3 Administrator shall request the Federal Deposit

4 Insurance Corporation to transfer to the Ad5 ministrator the amount required for the Admin6 istrator to make such payments.

7 ‘‘(B) DEFINITIONS OF BIF MEMBER AND

8 SAIF MEMBER.—For purposes of subparagraph

9 (A), the terms ‘Bank Insurance Fund member’

10 and ‘Savings Association Insurance Fund mem11 ber’ have the meanings given to such terms in

12 paragraphs (4) and (5), respectively, of section

13 7(l) of the Federal Deposit Insurance Act.

14 ‘‘(C) AMOUNTS PAID TO NEW BANKS AND

15 BRIDGE BANKS.—A determination under—

16 ‘‘(i) paragraph (11) or (13) of sub17 section (h) of the amount of the insured

18 deposits, operating expenses, or losses of a

19 new bank; or

20 ‘‘(ii) subsection (i)(5)(B) to make op21 erating funds available to a bridge bank,

22 shall be treated as a determination pursuant to

23 paragraph (1) for purposes of this paragraph.

24 ‘‘(3) PROOF OF CLAIMS.—The Administrator,

25 in the Administrator’s discretion, may require proof
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1 of claims to be filed and may approve or reject such

2 claims for insured deposits.

3 ‘‘(4) RESOLUTION OF DISPUTES.—

4 ‘‘(A) RESOLUTIONS IN ACCORDANCE TO

5 AGENCY REGULATIONS.—In the case of any dis6 puted claim relating to any insured deposit or

7 any determination of insurance coverage with

8 respect to any deposit, the Administrator may

9 resolve such disputed claim in accordance with

10 regulations prescribed by the Administrator es11 tablishing procedures for resolving such claims.

12 ‘‘(B) ADJUDICATION OF CLAIMS.—If the

13 Administrator has not prescribed regulations

14 establishing procedures for resolving disputed

15 claims, the Administrator may require the final

16 determination of a court of competent jurisdic17 tion before paying any such claim.

18 ‘‘(5) REVIEW OF ADMINISTRATOR’S DETER19 MINATION.—Final determination made by the Ad20 ministrator shall be reviewable in accordance with

21 chapter 7 of title 5, United States Code, by the

22 United States Court of Appeals for the District of

23 Columbia or the court of appeals for the Federal ju24 dicial circuit where the principal place of business of

25 the depository institution is located.
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1 ‘‘(6) STATUTE OF LIMITATIONS.—Any request

2 for review of a final determination by the Adminis3 trator shall be filed with the appropriate United

4 States circuit court of appeals not later than 60

5 days after such determination is ordered.

6 ‘‘(e) SUBROGATION OF AGENCY.—

7 ‘‘(1) IN GENERAL.—Notwithstanding any other

8 provision of Federal law, the law of any State, or the

9 constitution of any State, the Administrator, upon

10 the payment to, or on behalf of, any depositor as

11 provided in subsection (d) in connection with any in12 sured depository institution or insured branch de13 scribed in such subsection or the assumption of any

14 deposit in such institution or branch by another in15 sured depository institution pursuant to this section

16 or section 13 of the Federal Deposit Insurance Act,

17 shall be subrogated to all rights of the depositor

18 against such institution or branch to the extent of

19 such payment or assumption, subject to paragraph

20 (2).

21 ‘‘(2) CLAIM OF FDIC.—Any right of the Admin22 istrator under subparagraph (A) with respect to any

23 payment to a depositor under subsection (d) shall be

24 subject to any claim of the Federal Deposit Insur25 ance Corporation under section 11(g) of the Federal
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1 Deposit Insurance Act with respect to any transfer

2 of funds from the Corporation to the Administrator

3 pursuant to section 11(f) of such Act in connection

4 with such payment.

5 ‘‘(3) DIVIDENDS ON SUBROGATED AMOUNTS.—

6 The subrogation of the Administrator under para7 graph (1) with respect to any insured depository in8 stitution shall include the right on the part of the

9 Administrator to receive the same dividends from

10 the proceeds of the assets of such institution and re11 coveries on account of stockholders’ liability as

12 would have been payable to the depositor on a claim

13 for the insured deposit, but such depositor shall re14 tain such claim for any uninsured or unassumed

15 portion of the deposit.

16 ‘‘(4) WAIVER OF CERTAIN CLAIMS.—With re17 spect to any bank which closes after May 25, 1938,

18 the Administrator shall waive, in favor only of any

19 person against whom stockholders’ individual liabil20 ity may be asserted, any claim on account of such

21 liability in excess of the liability, if any, to the bank

22 or its creditors, for the amount unpaid upon such

23 stock in such bank; but any such waiver shall be ef24 fected in such manner and on such terms and condi25 tions as will not increase recoveries or dividends on
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1 account of claims to which the Administrator is not

2 subrogated.

3 ‘‘(5) APPLICABILITY OF STATE LAW.—If the

4 Administrator is appointed pursuant to subsection

5 (a)(3), or determines not to invoke the authority

6 conferred in subsection (a)(4), the rights of deposi7 tors and other creditors of any State depository in8 stitution shall be determined in accordance with the

9 applicable provisions of State law.

10 ‘‘(f) SUPERVISORY RECORDS.—In addition to the re11 quirements of section 7(a)(2) of the Federal Deposit In12 surance Act to provide to the Administrator copies of re13 ports of examination and reports of condition, whenever

14 the Administrator has been appointed as receiver for an

15 insured depository institution, the appropriate Federal

16 banking agency shall make available all supervisory

17 records to the receiver which may be used by the receiver

18 in any manner the receiver determines to be appropriate.

19 ‘‘(g) VALUATION OF CLAIMS IN DEFAULT.—

20 ‘‘(1) IN GENERAL.—Notwithstanding any other

21 provision of Federal law or the law of any State and

22 regardless of the method which the Administrator

23 determines to utilize with respect to an insured de24 pository institution in default or in danger of de25 fault, including transactions authorized under sub-
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1 section (i) of this section and section 13(c) of the

2 Federal Deposit Insurance Act, this subsection shall

3 govern the rights of the creditors (other than in4 sured depositors) of such institution.

5 ‘‘(2) MAXIMUM LIABILITY.—The maximum li6 ability of the Administrator, acting as receiver or in

7 any other capacity, to any person having a claim

8 against the receiver or the insured depository insti9 tution for which such receiver is appointed shall

10 equal the amount such claimant would have received

11 if the Administrator had liquidated the assets and li12 abilities of such institution without exercising the

13 Administrator’s authority under subsection (i) of

14 this section or section 13 of the Federal Deposit In15 surance Act.

16 ‘‘(3) ADDITIONAL PAYMENTS AUTHORIZED.—

17 ‘‘(A) IN GENERAL.—The Administrator

18 may, in the Administrator’s discretion and in

19 the interests of minimizing the losses of the

20 Federal Deposit Insurance Corporation, use the

21 Agency’s own resources, or request resources

22 from the Federal Deposit Insurance Corpora23 tion, to make additional payments or credit ad24 ditional amounts to or with respect to or for the
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1 account of any claimant or category of claim2 ants.

3 ‘‘(B) SOURCE OF FUNDS.—

4 ‘‘(i) BANK INSURANCE FUND.—If the

5 depository institution in default is a Bank

6 Insurance Fund member, the Federal De7 posit Insurance Corporation may only

8 make funds available to the Administrator

9 for payments under subparagraph (A) out

10 of funds held in the Bank Insurance Fund.

11 ‘‘(ii) SAVINGS ASSOCIATION INSUR12 ANCE FUND.—If the depository institution

13 in default is a Savings Association Insur14 ance Fund member (including institutions

15 for which the Resolution Trust Corporation

16 was appointed as a conservator or receiver

17 before such corporation was abolished), the

18 Federal Deposit Insurance Corporation

19 may only make funds available to the Ad20 ministrator for payments under subpara21 graph (A) out of funds held in the Savings

22 Association Insurance Fund.

23 ‘‘(iii) ASSOCIATIONS SUBJECT TO

24 FSLIC RESOLUTION FUND.—If the deposi25 tory institution in default is an institution
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1 for which the Administrator has been ap2 pointed conservator or receiver under sec3 tion 11A(a)(5) of the Federal Deposit In4 surance Act, funds for the institution shall

5 be obtained by the Administrator from—

6 ‘‘(I) the Administrator’s own re7 sources under subsections (b) and (c)

8 of section 11A of the Federal Deposit

9 Insurance Act; and

10 ‘‘(II) the Federal Deposit Insur11 ance Corporation out of funds held in

12 the Savings Association Insurance

13 Fund.

14 ‘‘(C) MANNER OF PAYMENT.—The Admin15 istrator may make the payments or credit the

16 amounts specified in subparagraph (A) directly

17 to the claimants or may make such payments or

18 credit such amounts to an open insured deposi19 tory institution to induce such institution to ac20 cept liability for such claims.

21 ‘‘(D) LIMIT ON ADDITIONAL LIABILITY.—

22 Notwithstanding any other provision of Federal

23 or State law, or the constitution of any State,

24 the Administrator shall not be obligated, as a

25 result of having made any such payment or
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1 credited any amount under subparagraph (A) to

2 or with respect to or for the account of any

3 claimant or category of claimants, to make pay4 ments to any other claimant or category of

5 claimants.

6 ‘‘(h) NEW BANKS.—

7 ‘‘(1) ORGANIZATION AUTHORIZED.—As soon as

8 possible after the default of an insured bank, the

9 Administrator, if it finds that it is advisable and in

10 the interest of the depositors of the insured bank in

11 default or the public shall organize a new national

12 bank in the same community as the bank in default

13 to assume the insured deposits of such bank in de14 fault and otherwise to perform temporarily the func15 tions hereinafter provided for.

16 ‘‘(2) ARTICLES OF ASSOCIATION.—The articles

17 of association and the organization certificate of the

18 new bank shall be executed by representatives des19 ignated by the Administrator.

20 ‘‘(3) CAPITAL STOCK.—No capital stock need

21 be paid in by the Administrator.

22 ‘‘(4) EXECUTIVE OFFICER.—The new bank

23 shall not have a board of directors, but shall be

24 managed by an executive officer appointed by the
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1 Administrator who shall be subject to the Adminis2 trator’s direction.

3 ‘‘(5) SUBJECT TO LAWS RELATING TO NA4 TIONAL BANKS.—In all other respects, the new bank

5 shall be organized in accordance with the provisions

6 of law relating to the organization of national banks,

7 as in effect on the date of organization.

8 ‘‘(6) NEW DEPOSITS.—The new bank may, with

9 the approval of the Administrator, accept new depos10 its which shall be subject to withdrawal on demand

11 and which, except where the new bank is the only

12 bank in the community, shall not exceed $100,000

13 from any depositor.

14 ‘‘(7) INSURED STATUS.—The new bank, with15 out application to or approval by the Federal De16 posit Insurance Corporation, shall be an insured de17 pository institution and shall maintain on deposit

18 with the Federal Reserve bank of the new bank’s

19 district reserves in the amount required by law for

20 member banks, but the new bank shall not be re21 quired to subscribe for stock of the Federal Reserve

22 bank.

23 ‘‘(8) INVESTMENTS.—Funds of the new bank

24 shall be kept on hand in cash, invested in obligations

25 of the United States or obligations guaranteed as to
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1 principal and interest by the United States, or de2 posited with the Administrator, any Federal Reserve

3 bank, or, to the extent of the insurance coverage on

4 any such deposit, an insured depository institution.

5 ‘‘(9) CONDUCT OF BUSINESS.—The new bank,

6 unless otherwise authorized by the Comptroller of

7 the Currency, shall transact business only as author8 ized by this Act and as may be incidental to the new

9 bank’s organization.

10 ‘‘(10) EXEMPT STATUS.—Notwithstanding any

11 other provision of Federal or State law, the new

12 bank and the bank’s franchise, property, and income

13 shall be exempt from all taxation now or hereafter

14 imposed by the United States, by any territory, de15 pendency, or possession of the United States, or by

16 any State, county, municipality, or local taxing au17 thority.

18 ‘‘(11) TRANSFER OF DEPOSITS.—

19 ‘‘(A) IN GENERAL.—Upon the organization

20 of a new bank, the Administrator shall—

21 ‘‘(i) promptly make available to the

22 new bank an amount equal to the esti23 mated insured deposits of the bank in de24 fault plus the estimated amount of the ex25 penses of operating the bank; and
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1 ‘‘(ii) determine as soon as possible the

2 amount due each depositor for the deposi3 tor’s insured deposit in the bank in de4 fault, and the total expenses of operation

5 of the new bank.

6 ‘‘(B) ADJUSTMENTS.—Upon making any

7 determination under subparagraph (A)(ii), the

8 Administrator shall adjust the amounts which

9 were estimated and made available pursuant to

10 subparagraph (A)(i) so as to conform to the

11 amounts so determined.

12 ‘‘(12) EARNINGS.—Earnings of the new bank

13 shall be paid over or credited to the Administrator

14 and treated as amounts received from a liquidation

15 for purposes of subsection (b)(11)(A).

16 ‘‘(13) LOSSES.—If any new bank, during the

17 period the bank remains a new bank under this sub18 section, sustains any losses with respect to which the

19 bank is not effectively protected from loss (other

20 than by reason of being an insured bank), the Ad21 ministrator shall furnish to the bank additional

22 funds in the amount of such losses.

23 ‘‘(14) PAYMENT OF INSURED DEPOSITS.—

24 ‘‘(A) ASSUMPTION OF TRANSFERRED DE25 POSITS.—A new bank shall assume, as trans-
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1 ferred deposits, the payment of the insured de2 posits of the depositors of the bank in default

3 to each of the depositors of the bank in default.

4 ‘‘(B) TRANSFERS FOR OPERATIONAL EX5 PENSES AND LIQUIDITY PURPOSES.—Of the

6 amounts so made available, the Administrator

7 shall transfer to the new bank, in cash, such

8 sums as may be necessary to enable the bank

9 to meet the bank’s expenses of operation and

10 immediate cash demands on such transferred

11 deposits, and the remainder of such amounts

12 shall be subject to withdrawal by the new bank

13 on demand.

14 ‘‘(15) ISSUANCE OF STOCK.—

15 ‘‘(A) IN GENERAL.—The Administrator

16 may provide for capital stock of the new bank

17 to be offered for sale on such terms and condi18 tions as the Administrator determines to be ad19 visable and in an amount sufficient, in the opin20 ion of the Administrator, to allow the business

21 of the new bank to be conducted on a sound

22 basis, but in no event less than that required by

23 section 5138 of the Revised Statutes for the or24 ganization of a national bank in the place where

25 such new bank is located.
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1 ‘‘(B) FIRST RIGHT OF PURCHASE.—The

2 stockholders of the insured bank in default shall

3 be given the first opportunity to purchase, in an

4 offering under subparagraph (A), any shares of

5 common stock of the new bank.

6 ‘‘(16) ISSUANCE OF CERTIFICATE.—

7 ‘‘(A) ORGANIZATION OF SUCCESSOR NA8 TIONAL BANK.—Upon proof that an adequate

9 amount of capital stock in the new bank has

10 been subscribed and paid for in cash, the

11 Comptroller of the Currency shall require the

12 articles of association and the organization cer13 tificate of the new bank to be amended to con14 form to the requirements for the organization

15 of a national bank.

16 ‘‘(B) AUTHORITY OF SUCCESSOR BANK TO

17 COMMENCE BUSINESS.—When the amendments

18 required to be made by a new bank under sub19 paragraph (A) have been made and the require20 ments of law with respect to the organization of

21 a national bank have been complied with by

22 such bank, the Comptroller of the Currency

23 shall issue to the bank a certificate of authority

24 to commence business.
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1 ‘‘(C) CHANGE OF STATUS.—Upon the issu2 ance of a certificate of authority to commence

3 business to a new bank under subparagraph

4 (B), the bank—

5 ‘‘(i) shall cease to have the status of

6 a new bank;

7 ‘‘(ii) shall be managed by directors

8 elected by the bank’s own shareholders;

9 ‘‘(iii) may exercise all the powers

10 granted by law to a national bank;

11 ‘‘(iv) shall be subject to all provisions

12 of law relating to national banks; and

13 ‘‘(v) shall continue to be an insured

14 bank without application to or approval by

15 the Federal Deposit Insurance Corpora16 tion.

17 ‘‘(17) TRANSFER TO OTHER INSTITUTION.—If

18 the capital stock of the new bank is not offered for

19 sale, or if an adequate amount of capital for such

20 new bank is not subscribed and paid for, the Admin21 istrator—

22 ‘‘(A) may offer to transfer the new bank’s

23 business to any insured depository institution in

24 the same community which will—

25 ‘‘(i) take over the bank’s assets;
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1 ‘‘(ii) assume the new bank’s liabilities;

2 and

3 ‘‘(iii) pay to the Administrator for

4 such business such amount as the Admin5 istrator may deem adequate; or

6 ‘‘(B) in the Administrator’s discretion,

7 may—

8 ‘‘(i) change the location of the new

9 bank to—

10 ‘‘(I) an office of the Agency; or

11 ‘‘(II) to some other place; or

12 ‘‘(ii) at any time, wind up the bank’s

13 affairs as provided in this section.

14 ‘‘(18) WINDING UP.—

15 ‘‘(A) IN GENERAL.—If the capital stock of

16 the new bank is not sold or the bank is not ac17 quired (as defined in section 13(f)(8)(B) of the

18 Federal Deposit Insurance Act) before the end

19 of the 2-year period beginning on the date of

20 the organization of the new bank, the Adminis21 trator shall—

22 ‘‘(i) wind up the affairs of such bank,

23 after giving such notice as the Comptroller

24 of the Currency may require;

25 ‘‘(ii) terminate the bank;
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1 ‘‘(iii) certify to the Comptroller of the

2 Currency the termination of the new bank.

3 ‘‘(B) AGENCY AS SUCCESSOR TO TERMI4 NATED BANK.—After the termination of a new

5 bank under subparagraph (A), the Adminis6 trator shall be liable for the obligations of such

7 bank and shall be the owner of the banks as8 sets.

9 ‘‘(19) APPLICABILITY OF CERTAIN LAWS.—The

10 provisions of sections 5220 and 5221 of the Revised

11 Statutes shall not apply to a new bank under this

12 subsection.

13 ‘‘(i) BRIDGE BANKS.—

14 ‘‘(1) ORGANIZATION.—

15 ‘‘(A) PURPOSE.—Subject to any other re16 quirement of this subsection, if 1 or more in17 sured banks are in default, or if the Federal

18 Deposit Insurance Corporation determines that

19 1 or more insured banks are in danger of de20 fault (as defined in section 3 of the Federal De21 posit Insurance Act), the Administrator may, in

22 the Administrator’s discretion (and after notice

23 from the Administrator of any such determina24 tion) organize, and the Office of the Comptrol25 ler of the Currency shall charter, 1 or more na-
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1 tional banks which shall be known as bridge

2 banks and shall have the powers and attributes

3 of national banks.

4 ‘‘(B) AUTHORITIES.—Upon the granting

5 of a charter to a bridge bank, the bridge bank

6 may—

7 ‘‘(i) assume such deposits of any in8 sured bank that is in default or in danger

9 of default as the Administrator may, in the

10 Administrator’s discretion, determine to be

11 appropriate, except that if any insured de12 posits of a bank are assumed, all insured

13 deposits of that bank shall be assumed by

14 the bridge bank or another insured deposi15 tory institution;

16 ‘‘(ii) assume such other liabilities (in17 cluding liabilities associated with any trust

18 business) of any insured bank that is in

19 default or in danger of default as the Ad20 ministrator may, in the Administrator’s

21 discretion, determine to be appropriate;

22 ‘‘(iii) purchase such assets (including

23 assets associated with any trust business)

24 of any insured bank that is in default or

25 in danger of default as the Administrator
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1 may, in the Administrator’s discretion, de2 termine to be appropriate; and

3 ‘‘(iv) perform any other temporary

4 function which the Administrator may, in

5 the Administrator’s discretion, prescribe in

6 accordance with this Act.

7 ‘‘(C) ARTICLES OF ASSOCIATION.—The ar8 ticles of association and organization certificate

9 of a bridge bank as approved by the Adminis10 trator shall be executed by 3 representatives

11 designated by the Administrator.

12 ‘‘(D) INTERIM DIRECTORS.—A bridge bank

13 shall have an interim board of directors consist14 ing of not fewer than 5 nor more than 10 mem15 bers appointed by the Administrator.

16 ‘‘(E) NATIONAL BANK.—A bridge bank

17 shall be organized as a national bank.

18 ‘‘(F) DETERMINATION OF A BANK IN DAN19 GER OF DEFAULT.—For purposes of this sub20 section, the determination that a bank is in

21 danger of default shall be made by the Federal

22 Deposit Insurance Corporation.

23 ‘‘(2) CHARTERING.—

24 ‘‘(A) CONDITIONS.—A national bank may

25 be chartered by the Comptroller of the Cur-
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1 rency as a bridge bank only if the Adminis2 trator determines that—

3 ‘‘(i) the amount which is reasonably

4 necessary to operate such bridge bank will

5 not exceed the amount which is reasonably

6 necessary to save the cost of liquidating,

7 including paying the insured accounts of, 1

8 or more insured banks in default or in

9 danger of default with respect to which the

10 bridge bank is chartered;

11 ‘‘(ii) the continued operation of any

12 insured bank in default or in danger of de13 fault with respect to which the bridge bank

14 is chartered is essential to provide ade15 quate banking services in the community

16 where each such bank in default or in dan17 ger of default is located; or

18 ‘‘(iii) the continued operation of any

19 such insured bank in default or in danger

20 of default with respect to which the bridge

21 bank is chartered is in the best interest

22 of—

23 ‘‘(I) the depositors of any such

24 bank in default or in danger of de25 fault; or
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1 ‘‘(II) the public.

2 ‘‘(B) INSURED NATIONAL BANK.—A bridge

3 bank shall be an insured bank from the time

4 the bank is chartered as a national bank.

5 ‘‘(C) BRIDGE BANK TREATED AS BEING IN

6 DEFAULT FOR CERTAIN PURPOSES.—A bridge

7 bank shall be treated as an insured bank in de8 fault at such times and for such purposes as

9 the Administrator may, in the Administrator’s

10 discretion, determine to be appropriate.

11 ‘‘(D) MANAGEMENT.—Upon the granting

12 of a charter to a bridge bank, the bridge bank

13 shall be under the management of a board of

14 directors consisting of not fewer than 5 nor

15 more than 10 members appointed by the Ad16 ministrator.

17 ‘‘(E) BYLAWS.—The board of directors of

18 a bridge bank shall adopt such bylaws as may

19 be approved by the Administrator.

20 ‘‘(3) TRANSFER OF ASSETS AND LIABILITIES.—

21 ‘‘(A) IN GENERAL.—

22 ‘‘(i) TRANSFER UPON GRANT OF

23 CHARTER.—If a bridge bank is chartered

24 under this subsection with respect to an in25 sured bank in default, the Administrator,
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1 as receiver, and any other receiver ap2 pointed with respect to the bank in default,

3 may transfer any assets and liabilities of

4 the bank in default to the bridge bank in

5 accordance with paragraph (1).

6 ‘‘(ii) SUBSEQUENT TRANSFERS.—At

7 any time after a charter is granted to a

8 bridge bank, the Administrator, as re9 ceiver, or any other receiver appointed with

10 respect to an insured bank in default, may

11 transfer to the bridge bank any assets and

12 liabilities of the bank in default as the Ad13 ministrator may, in the Administrator’s

14 discretion, determine to be appropriate in

15 accordance with paragraph (1).

16 ‘‘(iii) TREATMENT OF TRUST BUSI17 NESS.—For purposes of this paragraph,

18 the trust business of any insured bank in

19 default, including any fiduciary appoint20 ment of such bank, shall be included

21 among and treated as the bank’s assets

22 and liabilities.

23 ‘‘(iv) EFFECTIVE WITHOUT AP24 PROVAL.—The transfer of any asset or li25 ability of an insured bank in default, in-
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1 cluding any asset or liability associated

2 with the trust business of the bank, to a

3 bridge bank shall be effective without any

4 further approval under Federal or State

5 law, assignment, or consent with respect to

6 the transferral.

7 ‘‘(B) INTENT OF CONGRESS REGARDING

8 CONTINUING OPERATIONS.—It is the intent of

9 the Congress that, in order to prevent unneces10 sary hardship or losses to the customers of any

11 insured bank in default with respect to which a

12 bridge bank is chartered, especially credit13 worthy farmers, small businesses, and house14 holds, the Administrator should—

15 ‘‘(i) continue to honor commitments

16 made by the bank in default to credit17 worthy customers, and

18 ‘‘(ii) not interrupt or terminate ade19 quately secured loans which are trans20 ferred under subparagraph (A) and are

21 being repaid by the debtor in accordance

22 with the terms of the loan instrument.

23 ‘‘(4) POWERS OF BRIDGE BANKS.—Each bridge

24 bank chartered under this subsection shall have all
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1 corporate powers of, and be subject to the same pro2 visions of law as, a national bank, except that—

3 ‘‘(A) the Administrator may—

4 ‘‘(i) remove the interim directors and

5 directors of a bridge bank;

6 ‘‘(ii) fix the compensation of members

7 of the interim board of directors and the

8 board of directors and senior management,

9 as determined by the Administrator in the

10 Administrator’s discretion, of a bridge

11 bank; and

12 ‘‘(iii) waive any requirement estab13 lished under section 5145, 5146, 5147,

14 5148, or 5149 of the Revised Statutes (re15 lating to directors of national banks) or

16 section 31 of the Banking Act of 1933

17 which would otherwise be applicable with

18 respect to directors of a bridge bank by op19 eration of paragraph (2)(B);

20 ‘‘(B) the Administrator may indemnify the

21 representatives for purposes of paragraph

22 (1)(B) and the interim directors, officers, em23 ployees, and agents of a bridge bank on such

24 terms as the Administrator determines to be

25 appropriate;
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1 ‘‘(C) no requirement under section 5138 of

2 the Revised Statutes or any other provision of

3 law relating to the capital of a national bank

4 shall apply with respect to a bridge bank;

5 ‘‘(D) the Comptroller of the Currency may

6 establish a limitation on the extent to which

7 any person may become indebted to a bridge

8 bank without regard to the amount of the

9 bridge bank’s capital or surplus;

10 ‘‘(E) the board of directors of a bridge

11 bank—

12 ‘‘(i) shall elect a chairperson who may

13 also serve in the position of chief executive

14 officer, except that such person shall not

15 serve either as chairperson or as chief ex16 ecutive officer without the prior approval

17 of the Administrator; and

18 ‘‘(ii) may appoint a chief executive of19 ficer who is not also the chairperson, ex20 cept that such person shall not serve as

21 chief executive officer without the prior ap22 proval of the Administrator;

23 ‘‘(F) a bridge bank shall not be required to

24 purchase stock of any Federal Reserve bank;
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1 ‘‘(G) the Comptroller of the Currency shall

2 waive any requirement for a fidelity bond with

3 respect to a bridge bank at the request of the

4 Administrator;

5 ‘‘(H) any judicial action to which a bridge

6 bank becomes a party by virtue of the bridge

7 bank’s acquisition of any assets or assumption

8 of any liabilities of a bank in default shall be

9 stayed from further proceedings for a period of

10 up to 45 days at the request of the bridge bank;

11 ‘‘(I) no agreement which tends to diminish

12 or defeat the right, title or interest of a bridge

13 bank in any asset of an insured bank in default

14 acquired by it shall be valid against the bridge

15 bank unless such agreement meets the require16 ments of subsection (b)(9)(A);

17 ‘‘(J) notwithstanding subsection (b)(9)(A),

18 any agreement relating to an extension of credit

19 between a Federal home loan bank or Federal

20 Reserve bank and any insured depository insti21 tution which was executed before the extension

22 of credit by such bank to such depository insti23 tution shall be treated as having been executed

24 contemporaneously with such extension of credit

25 for purposes of subparagraph (I); and
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1 ‘‘(K) a bridge bank may not, in any trans2 action or series of transactions, issue capital

3 stock or be a party to any merger, consolida4 tion, disposition of assets or liabilities, sale or

5 exchange of capital stock, or similar trans6 action, or change the bank’s charter without the

7 prior approval of the Administrator.

8 ‘‘(5) CAPITAL.—

9 ‘‘(A) NO CAPITAL REQUIRED.—The Ad10 ministrator shall not be required to—

11 ‘‘(i) issue any capital stock on behalf

12 of a bridge bank chartered under this sub13 section; or

14 ‘‘(ii) purchase any capital stock of a

15 bridge bank, except that notwithstanding

16 any other provision of Federal or State

17 law, the Administrator may purchase and

18 retain capital stock of a bridge bank in

19 such amounts and on such terms as the

20 Administrator, in the Administrator’s dis21 cretion, determines to be appropriate.

22 ‘‘(B) OPERATING FUNDS IN LIEU OF CAP23 ITAL.—Upon the organization of a bridge bank,

24 and thereafter, as the Administrator may, in

25 the Administrator’s discretion, determine to be
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•HR 1713 IH

1 necessary or advisable, the Administrator may

2 make available to the bridge bank, upon such

3 terms and conditions and in such form and

4 amounts as the Administrator may determine

5 (in the Administrator’s discretion), funds for

6 the operation of the bridge bank in lieu of cap7 ital.

8 ‘‘(C) AUTHORITY TO ISSUE CAPITAL

9 STOCK.—The Administrator shall cause capital

10 stock of a bridge bank to be issued and offered

11 for sale in such amounts and on such terms and

12 conditions as the Administrator may, in the Ad13 ministrator’s discretion, determine after making

14 a determination that such an offering is appro15 priate.

16 ‘‘(6) NO FEDERAL STATUS.—

17 ‘‘(A) AGENCY STATUS.—A bridge bank

18 shall not be treated as an agency, establish19 ment, or instrumentality of the United States.

20 ‘‘(B) EMPLOYEE STATUS.—

21 ‘‘(i) NO FEDERAL EMPLOYEE STA22 TUS.—A person who serves at the request

23 of the Administrator as a representative

24 for purposes of paragraph (1)(B) or who is

25 an interim director, director, officer, em-
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1 ployee, or agent of a bridge bank shall not

2 be considered to be an officer or employee

3 of the United States, or of any agency or

4 instrumentality of the United States, solely

5 by virtue of service in any such capacity.

6 ‘‘(ii) STATUS OF FEDERAL EMPLOYEE

7 ON DETAIL.—Any employee of the Admin8 istrator or of any Federal instrumentality

9 who serves at the request of the Adminis10 trator as a representative for purposes of

11 paragraph (1)(B), or is an interim direc12 tor, director, officer, employee, or agent of

13 a bridge bank shall not—

14 ‘‘(I) solely by virtue of service in

15 any such capacity lose any existing

16 status as an officer or employee of the

17 United States for purposes of title 5,

18 United States Code, or any other pro19 vision of law; or

20 ‘‘(II) receive any salary or bene21 fits for service in any such capacity

22 with respect to a bridge bank in addi23 tion to such salary or benefits as are

24 obtained through employment with
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1 the Administrator or such Federal in2 strumentality.

3 ‘‘(7) ASSISTANCE AUTHORIZED.—The Adminis4 trator may, in the Administrator’s discretion, pro5 vide assistance under section 13(c) of the Federal

6 Deposit Insurance Act—

7 ‘‘(A) to facilitate any transaction described

8 in clause (i), (ii), or (iii) of paragraph (10)(A)

9 with respect to any bridge bank in the same

10 manner and to the same extent as such assist11 ance may be provided under such section with

12 respect to an insured bank in default; or

13 ‘‘(B) to facilitate a bridge bank’s acquisi14 tion of any assets or the assumption of any li15 abilities of an insured bank in default.

16 ‘‘(8) ACQUISITION.—

17 ‘‘(A) IN GENERAL.—The responsible agen18 cy shall notify the Attorney General of any

19 transaction involving the merger or sale of a

20 bridge bank requiring approval under section

21 18(c) of the Federal Deposit Insurance Act

22 and, if a report on competitive factors is re23 quested within 10 days, such transaction may

24 not be consummated before the 5th calendar

25 day after the date of approval by the respon-
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1 sible agency (as defined in section 18(c)(2) of

2 the Federal Deposit Insurance Act) with re3 spect to the transaction.

4 ‘‘(B) EXCEPTION.—If the responsible

5 agency (as so defined) finds that the agency

6 must act immediately to prevent the probable

7 failure of 1 of the banks involved, subparagraph

8 (A) shall not apply and the transaction may be

9 consummated immediately upon approval by the

10 agency.

11 ‘‘(C) RULE APPLICABLE TO OUT-OF-STATE

12 HOLDING COMPANIES.—

13 ‘‘(i) IN GENERAL.—Any depository in14 stitution, including an out-of-State deposi15 tory institution, or any out-of-State deposi16 tory institution holding company may ac17 quire and retain the capital stock or assets

18 of, or otherwise acquire and retain a bridge

19 bank if the bridge bank at any time had

20 assets aggregating $500,000,000 or more,

21 as determined by the Administrator on the

22 basis of the bridge bank’s reports of condi23 tion or on the basis of the last available re24 ports of condition of any insured bank in

25 default which has been acquired, or whose
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1 assets have been acquired, by the bridge

2 bank.

3 ‘‘(ii) FORM OF ACQUISITION.—The ac4 quiring entity may acquire the bridge bank

5 only in the same manner and to the same

6 extent as such entity may acquire an in7 sured bank in default under section

8 13(f)(2) of the Federal Deposit Insurance

9 Act.

10 ‘‘(9) DURATION OF BRIDGE BANK.—

11 ‘‘(A) IN GENERAL.—Subject to subpara12 graph (B) and paragraphs (11) and (12), the

13 status of a bridge bank as such shall terminate

14 at the end of the 2-year period following the

15 date it was granted a charter.

16 ‘‘(B) EXTENSION OF PERIOD.—The Ad17 ministrator may, in the Administrator’s discre18 tion, extend the status of the bridge bank as

19 such for 3 additional 1-year periods.

20 ‘‘(10) TERMINATION OF BRIDGE BANK STA21 TUS.—The status of any bridge bank, as such, shall

22 terminate upon the earliest of—

23 ‘‘(A) the merger or consolidation of the

24 bridge bank with a depository institution that is

25 not a bridge bank;
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1 ‘‘(B) at the election of the Administrator,

2 the sale of a majority of the capital stock of the

3 bridge bank to an entity other than the Admin4 istrator and other than another bridge bank;

5 ‘‘(C) the sale of 80 percent or more of the

6 capital stock of the bridge bank to an entity

7 other than the Administrator or another bridge

8 bank;

9 ‘‘(D) at the election of the Adminis10 trator—

11 ‘‘(i) the assumption of all or substan12 tially all of the deposits and other liabil13 ities of the bridge bank by a depository in14 stitution holding company or a depository

15 institution that is not a bridge bank; or

16 ‘‘(ii) the acquisition of all or substan17 tially all of the assets of the bridge bank

18 by a depository institution holding com19 pany, a depository institution that is not a

20 bridge bank, or other entity as permitted

21 under applicable law; and

22 ‘‘(E) the expiration of the period applicable

23 under paragraph (9), or the earlier dissolution

24 of the bridge bank as provided in paragraph

25 (12).
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1 ‘‘(11) EFFECT OF TERMINATION EVENTS.—

2 ‘‘(A) MERGER OR CONSOLIDATION.—A

3 bridge bank that participates in a merger or

4 consolidation as provided in paragraph (10)(A)

5 shall be considered for all purposes to be a na6 tional bank with all the rights, powers, and

7 privileges of a national bank, and such merger

8 or consolidation shall be conducted in accord9 ance with, and shall have the effect provided in,

10 the provisions of applicable law.

11 ‘‘(B) CHARTER CONVERSION.—Following

12 the sale of a majority of the capital stock of the

13 bridge bank as provided in paragraph (10)(B),

14 the Administrator may amend the charter of

15 the bridge bank to reflect the termination of the

16 status of the bridge bank as such, whereupon

17 the bank shall remain a national bank, with all

18 of the rights, powers, and privileges of a na19 tional bank, and shall be subject to all laws and

20 regulations applicable to national banks.

21 ‘‘(C) SALE OF STOCK.—Following the sale

22 of 80 percent or more of the capital stock of a

23 bridge bank as provided in paragraph (10)(C),

24 the bank shall remain a national bank, with all

25 of the rights, powers, and privileges of a na-
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1 tional bank, and shall be subject to all laws and

2 regulations applicable to national banks.

3 ‘‘(D) ASSUMPTION OF LIABILITIES AND

4 SALE OF ASSETS.—Following the assumption of

5 all or substantially all of the liabilities of the

6 bridge bank, or the sale of all or substantially

7 all of the assets of the bridge bank in accord8 ance with paragraph (10)(D), the bridge bank

9 may retain, at the election of the Administrator,

10 the bank’s status as a bridge bank for the pe11 riod provided in paragraph (9).

12 ‘‘(E) EFFECT ON HOLDING COMPANIES.—

13 A depository institution holding company ac14 quiring a bridge bank under section 13(f) of the

15 Federal Deposit Insurance Act or paragraph

16 (8)(C) of this subsection (or any predecessor

17 provision) shall—

18 ‘‘(i) not be impaired or adversely af19 fected by the termination of the status of

20 a bridge bank under subparagraph (A),

21 (B), (C), or (D) of paragraph (10); and

22 ‘‘(ii) be entitled to the rights and

23 privileges provided in section 13(f) of such

24 Act.
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1 ‘‘(F) AMENDMENTS TO CHARTER.—Fol2 lowing the consummation of a transaction de3 scribed in subparagraph (A), (B), (C), or (D)

4 of paragraph (10), the charter of the resulting

5 institution shall be amended to reflect the ter6 mination of bridge bank status, if appropriate.

7 ‘‘(12) DISSOLUTION OF BRIDGE BANK.—

8 ‘‘(A) IN GENERAL.—Notwithstanding any

9 other provision of State or Federal law, if the

10 bridge bank’s status as such has not previously

11 been terminated by the occurrence of an event

12 specified in subparagraph (A), (B), (C), or (D)

13 of paragraph (10)—

14 ‘‘(i) the Administrator may, in the

15 Administrator’s discretion, dissolve a

16 bridge bank in accordance with this para17 graph at any time; and

18 ‘‘(ii) the Administrator shall promptly

19 commence dissolution proceedings in ac20 cordance with this paragraph upon the ex21 piration of the 2-year period following the

22 date the bridge bank was chartered, or any

23 extension of such period under paragraph

24 (9).

25 ‘‘(B) PROCEDURES.—
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1 ‘‘(i) APPOINTMENT OF RECEIVER.—

2 The Comptroller of the Currency shall ap3 point the Administrator receiver for a

4 bridge bank upon certification by the Ad5 ministrator to the Comptroller of the Cur6 rency of the Administrator’s determination

7 to dissolve the bridge bank.

8 ‘‘(ii) DUTY OF RECEIVER.—The Ad9 ministrator, as receiver, shall wind up the

10 affairs of the bridge bank in conformity

11 with the provisions of law relating to the

12 liquidation of closed national banks.

13 ‘‘(iii) RIGHTS AND POWERS OF RE14 CEIVER.—With respect to any such bridge

15 bank, the Administrator, as receiver, shall

16 have all the rights, powers, and privileges

17 and shall perform the duties related to the

18 exercise of such rights, powers, or privi19 leges granted by law to a receiver of any

20 insured depository institution.

21 ‘‘(iv) INDEPENDENCE OF RE22 CEIVER.—Notwithstanding any other pro23 vision of law, the Administrator shall not

24 be subject to the direction or supervision of

25 any State agency or other Federal agency
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1 in the exercise of the Administrator’s

2 rights, powers, and privileges under this

3 subparagraph.

4 ‘‘(13) MULTIPLE BRIDGE BANKS.—Subject to

5 paragraph (1)(B)(i), the Administrator may, in the

6 Administrator’s discretion, organize 2 or more

7 bridge banks under this subsection to assume any

8 deposits of, assume any other liabilities of, and pur9 chase any assets of a single bank in default.

10 ‘‘SEC. 21D. PROVISIONS APPLICABLE TO AGENCY AS CON11 SERVATOR OR RECEIVER.

12 ‘‘(a) OTHER EXEMPTIONS.—

13 ‘‘(1) IN GENERAL.—The following provisions

14 shall apply with respect to the Agency when the

15 Agency is acting as a receiver:

16 ‘‘(A) TAX EXEMPTION.—Subject to para17 graph (3), the Agency, including the franchise,

18 capital, reserves, surplus, and income of the

19 Agency, shall be exempt from all taxation im20 posed by any State, county, municipality, or

21 local taxing authority.

22 ‘‘(B) EXEMPTION FROM ATTACHMENT,

23 FORECLOSURE, AND SALE.—No property of the

24 Agency shall be subject to levy, attachment (in25 cluding the attachment of any involuntary lien),
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1 garnishment, foreclosure, or sale without the

2 consent of the Administrator.

3 ‘‘(C) EXEMPTION FROM PENALTIES.—The

4 Agency shall not be liable for any amounts in

5 the nature of penalties or fines, including those

6 arising from the failure of any person to pay

7 any real property, personal property, probate,

8 or recording tax or any recording or filing fees

9 when due.

10 ‘‘(2) EXCEPTION FOR FEDERAL TAX.—This

11 subsection shall not apply with respect to any tax

12 imposed (or other amount arising) under the Inter13 nal Revenue Code of 1986.

14 ‘‘(3) EXCEPTION FOR REAL PROPERTY TAX.—

15 Notwithstanding paragraph (1)(A), any real prop16 erty of the Administrator shall be subject to State,

17 territorial, county, municipal, or local taxation to the

18 same extent according to the property’s value as

19 other real property is taxed, except that, notwith20 standing the failure of any person to challenge an

21 assessment under State law of such property’s value,

22 such value, and the tax on with respect to such

23 value, shall be determined as of the period for which

24 such tax is imposed.
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1 ‘‘(b) CERTAIN CONVICTED DEBTORS PROHIBITED

2 FROM PURCHASING ASSETS.—

3 ‘‘(1) CONVICTED DEBTORS.—Except as pro4 vided in paragraph (2), any individual who—

5 ‘‘(A) has been convicted of an offense

6 under section 215, 656, 657, 1005, 1006, 1007,

7 1008, 1014, 1032, 1341, 1343, or 1344 of title

8 18, United States Code, or of conspiring to

9 commit such an offense, affecting any insured

10 depository institution for which any conservator

11 or receiver has been appointed; and

12 ‘‘(B) is in default on any loan or other ex13 tension of credit from such insured depository

14 institution which, if not paid, will cause sub15 stantial loss to the institution, any deposit in16 surance fund, the Administrator, or the FSLIC

17 Resolution Fund,

18 may not purchase any asset of such institution from

19 the conservator or receiver.

20 ‘‘(2) SETTLEMENT OF CLAIMS.—Paragraph (1)

21 shall not apply to the sale or transfer by the Admin22 istrator of any asset of any insured depository insti23 tution to any individual if the sale or transfer of the

24 asset resolves or settles, or is part of the resolution

25 or settlement, of—
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1 ‘‘(A) 1 or more claims that have been, or

2 could have been, asserted by the Administrator

3 against the individual; or

4 ‘‘(B) obligations owed by the individual to

5 any insured depository institution, the FSLIC

6 Resolution Fund, or the Administrator.

7 ‘‘(c) EXPEDITED PROCEDURES FOR CERTAIN

8 CLAIMS.—

9 ‘‘(1) TIME FOR FILING NOTICE OF APPEAL.—

10 ‘‘(A) IN GENERAL.—The notice of appeal

11 of any order, whether interlocutory or final, en12 tered in any case brought by the Administrator

13 against an insured depository institution’s di14 rector, officer, employee, agent, attorney, ac15 countant, or appraiser or any other person em16 ployed by or providing services to an insured

17 depository institution shall be filed not later

18 than 30 days after the date of entry of the

19 order.

20 ‘‘(B) HEARING.—The hearing of the ap21 peal shall be decided not later than 120 days

22 after the date of the notice of the appeal.

23 ‘‘(C) DECISION.—The appeal shall be de24 cided not later than 180 days after the date of

25 the notice of the appeal.
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1 ‘‘(2) SCHEDULING.—

2 ‘‘(A) IN GENERAL.—Consistent with sec3 tion 1657 of title 18, United States Code, a

4 court of the United States shall expedite the

5 consideration of any case brought by the Ad6 ministrator against an insured depository insti7 tution’s director, officer, employee, agent, attor8 ney, accountant, or appraiser or any other per9 son employed by or providing services to an in10 sured depository institution.

11 ‘‘(B) PRIORITY.—As far as practicable, a

12 court referred to in subparagraph (A) shall give

13 a case referred to in such paragraph priority on

14 the court’s docket.

15 ‘‘(3) JUDICIAL DISCRETION.—The court may

16 modify the schedule and limitations stated in para17 graphs (1) and (2) in a particular case, based on a

18 specific finding that the ends of justice that would

19 be served by making such a modification would out20 weigh the best interest of the public in having the

21 case resolved expeditiously.

22 ‘‘(d) SALE OF ASSETS TO ADMINISTRATOR.—

23 ‘‘(1) IN GENERAL.—Any conservator, receiver,

24 or liquidator appointed for any insured depository

25 institution in default, including the Administrator,
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1 shall be entitled to offer the assets of such deposi2 tory institutions for sale to the Administrator or as

3 security for loans from the Administrator.

4 ‘‘(2) PROCEEDS.—The proceeds of every sale or

5 loan of assets to the Administrator shall be utilized

6 for the same purposes and in the same manner as

7 other funds realized from the liquidation of the as8 sets of such depository institutions.

9 ‘‘(3) RIGHTS AND POWERS OF ADMINIS10 TRATOR.—

11 ‘‘(A) IN GENERAL.—With respect to any

12 asset acquired or liability assumed pursuant to

13 this section, the Administrator shall have all of

14 the rights, powers, privileges, and authorities of

15 the Administrator as receiver under this sec16 tion.

17 ‘‘(B) RULE OF CONSTRUCTION.—Such

18 rights, powers, privileges, and authorities shall

19 be in addition to and not in derogation of any

20 rights, powers, privileges, and authorities other21 wise applicable to the Administrator.

22 ‘‘(C) FIDUCIARY RESPONSIBILITY.—In ex23 ercising any right, power, privilege, or authority

24 described in subparagraph (A), the Adminis25 trator shall continue to be subject to the fidu-
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1 ciary duties and obligations of the Adminis2 trator as receiver to claimants against the in3 sured depository institution in receivership.

4 ‘‘(D) DISPOSITION OF ASSETS.—In exer5 cising any right, power, privilege, or authority

6 described in subparagraph (A) regarding the

7 sale or disposition of assets sold to the Admin8 istrator pursuant to paragraph (1), the Admin9 istrator shall conduct the Agency’s operations

10 in a manner which—

11 ‘‘(i) maximizes the net present value

12 return from the sale or disposition of such

13 assets;

14 ‘‘(ii) minimizes the amount of any loss

15 realized in the resolution of cases;

16 ‘‘(iii) ensures adequate competition

17 and fair and consistent treatment of

18 offerors;

19 ‘‘(iv) prohibits discrimination on the

20 basis of race, sex, or ethnic groups in the

21 solicitation and consideration of offers; and

22 ‘‘(v) maximizes the preservation of the

23 availability and affordability of residential

24 real property for low- and moderate-income

25 individuals.
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1 ‘‘(4) LOANS.—The Administrator, in the Ad2 ministrator’s discretion, may make loans on the se3 curity of or may purchase and liquidate or sell any

4 part of the assets of an insured depository institu5 tion which may be in default at any time.

6 ‘‘(e) AGREEMENTS AGAINST INTERESTS OF ADMIN7 ISTRATOR.—No agreement which tends to diminish or de8 feat the interest of the Administrator in any asset ac9 quired by the Administrator under this section or sections

10 21A or 21C, either as security for a loan or by purchase

11 or as receiver of any insured depository institution, shall

12 be valid against the Administrator unless such agree13 ment—

14 ‘‘(1) is in writing,

15 ‘‘(2) was executed by the depository institution

16 and any person claiming an adverse interest under

17 the agreement, including the obligor, contempora18 neously with the acquisition of the asset by the de19 pository institution,

20 ‘‘(3) was approved by the board of directors of

21 the depository institution or the institution’s loan

22 committee, which approval shall be reflected in the

23 minutes of such board or committee, and
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1 ‘‘(4) has been, continuously, from the time of

2 the agreement’s execution, an official record of the

3 depository institution.

4 ‘‘(f) FOREIGN INVESTIGATIONS.—The Administrator,

5 as conservator or receiver of any insured depository insti6 tution and for purposes of carrying out any power, author7 ity, or duty with respect to an insured depository institu8 tion—

9 ‘‘(1) may request the assistance of any foreign

10 banking authority and provide assistance to any for11 eign banking authority in accordance with section

12 8(v); and

13 ‘‘(2) may each maintain an office to coordinate

14 foreign investigations or investigations on behalf of

15 foreign banking authorities.

16 ‘‘(g) PROHIBITION ON ENTERING SECRECY AGREE17 MENTS AND PROTECTIVE ORDERS.—The Administrator

18 may not enter into any agreement or approve any protec19 tive order which prohibits the Administrator from disclos20 ing the terms of any settlement of an administrative or

21 other action for damages or restitution brought by the Ad22 ministrator in the Administrator’s capacity as conservator

23 or receiver for an insured depository institution.

24 ‘‘(n) BOND NOT REQUIRED; AGENTS; FEE.—
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1 ‘‘(1) BONDS AND AGENTS.—The Administrator,

2 as receiver of an insured depository institution or

3 branch of a foreign bank—

4 ‘‘(A) shall not be required to furnish bond;

5 and

6 ‘‘(B) may appoint any person as agent to

7 assist the Agency in carrying out the Adminis8 trator’s duties as receiver.

9 ‘‘(2) FEES.—All fees, compensation, and ex10 penses of liquidation and administration shall be

11 fixed by the Administrator and may be paid by the

12 Administrator out of funds coming into the Adminis13 trator’s possession as receiver.

14 ‘‘(i) CONDITIONS APPLICABLE TO RESOLUTION PRO15 CEEDINGS.—

16 ‘‘(1) CONSIDERATION OF LOCAL ECONOMIC IM17 PACT REQUIRED.—The Administrator shall fully

18 consider the adverse economic impact on local com19 munities, including businesses and farms, of actions

20 to be taken by it during the administration and liq21 uidation of loans of a depository institution in de22 fault.

23 ‘‘(2) ACTIONS TO ALLEVIATE ADVERSE ECO24 NOMIC IMPACT TO BE CONSIDERED.—The actions

25 which the Administrator shall consider include the
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1 release of proceeds from the sale of products and

2 services for family living and business expenses and

3 shortening the undue length of the decisionmaking

4 process for the acceptance of offers of settlement

5 contingent upon third party financing.

6 ‘‘(3) GUIDELINES REQUIRED.—The Adminis7 trator shall adopt and publish procedures and guide8 lines to minimize adverse economic effects caused by

9 the Administrator’s actions on individual debtors in

10 the community.

11 ‘‘(4) FINANCIAL SERVICES INDUSTRY IMPACT

12 ANALYSIS.—After the appointment of the Adminis13 trator as conservator or receiver for any insured de14 pository institution and before taking any action

15 under this section or section 13 in connection with

16 the resolution of such institution, the Administrator

17 shall—

18 ‘‘(A) evaluate the likely impact of the

19 means of resolution, and any action which the

20 Administrator may take in connection with such

21 resolution, on the viability of other insured de22 pository institutions in the same community;

23 and

24 ‘‘(B) take such evaluation into account in

25 determining the means for resolving the institu-
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1 tion and establishing the terms and conditions

2 for any such action.

3 ‘‘(j) LIMITATION ON COURT ACTION.—Except as pro4 vided in this section, no court may take any action, except

5 at the request of the Administrator by regulation or order,

6 to restrain or affect the exercise of powers or functions

7 of the Administrator as a conservator or a receiver.

8 ‘‘(k) LIABILITY OF DIRECTORS AND OFFICERS.—A

9 director or officer of an insured depository institution may

10 be held personally liable for monetary damages in any civil

11 action by, on behalf of, or at the request or direction of

12 the Administrator, which action is prosecuted wholly or

13 partially for the benefit of the Administrator—

14 ‘‘(1) acting as conservator or receiver of such

15 institution,

16 ‘‘(2) acting based upon a suit, claim, or cause

17 of action purchased from, assigned by, or otherwise

18 conveyed by such receiver or conservator, or

19 ‘‘(3) acting based upon a suit, claim, or cause

20 of action purchased from, assigned by, or otherwise

21 conveyed in whole or in part by an insured deposi22 tory institution or an affiliate of an insured deposi23 tory institution in connection with assistance pro24 vided under section 13,
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1 for gross negligence, including any similar conduct or con2 duct that demonstrates a greater disregard of a duty of

3 care (than gross negligence) including intentional tortious

4 conduct, as such terms are defined and determined under

5 applicable State law. Nothing in this paragraph shall im6 pair or affect any right of the Administrator under other

7 applicable law.

8 ‘‘(l) DAMAGES.—In any proceeding related to any

9 claim against an insured depository institution’s director,

10 officer, employee, agent, attorney, accountant, appraiser,

11 or any other party employed by or providing services to

12 an insured depository institution, recoverable damages de13 termined to result from the improvident or otherwise im14 proper use or investment of any insured depository institu15 tion’s assets shall include principal losses and appropriate

16 interest.

17 ‘‘(m) DISCLOSURES REQUIRED.—

18 ‘‘(1) BORROWERS.—Not later than 6 months

19 after being appointed as receiver for any failed in20 sured depository institution that received funds, the

21 Administrator, shall make available to the public the

22 name and loan balance of any borrower from the in23 stitution who—

24 ‘‘(A) was an executive officer, director, or

25 principal shareholder of the institution, or a re-
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1 lated interest of any such person, as such terms

2 are defined in section 22(h) of the Federal Re3 serve Act; and

4 ‘‘(B) at the time that the receiver was ap5 pointed, was more than 90 days delinquent on

6 a loan.

7 ‘‘(2) TRANSACTIONS.—Not later than 12

8 months after being appointed receiver for any failed

9 insured depository institution that received funds,

10 the Administrator shall make available, and periodi11 cally update, a list of pending and settled lawsuits

12 brought by the Administrator involving transactions

13 (other than loans described in paragraph (1)) that

14 caused a material loss to such institution or to the

15 deposit insurance fund.

16 ‘‘(3) DEFINITIONS.—For purposes of this sub17 section—

18 ‘‘(A) FAILED DEPOSITORY INSTITUTION.—

19 The term ‘failed’, when used in connection with

20 a reference to an insured depository institution,

21 means an insured depository institution—

22 ‘‘(i) for which the Administrator has

23 been appointed as receiver or liquidating

24 agent; or
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1 ‘‘(ii) with respect to which the Admin2 istrator or the Federal Deposit Insurance

3 Corporation has exercised the power to

4 provide assistance under section 13(c)(2)

5 of the Federal Deposit Insurance Act.

6 ‘‘(B) RECEIVED FUNDS.—The term ‘re7 ceived funds’, when used in connection with a

8 reference to an insured depository institution,

9 means a transaction in which an insured depos10 itory institution, any company that controls

11 such institution, or any acquiring institution re12 ceives cash or other valuable consideration from

13 the Federal Deposit Insurance Corporation or

14 any Federal Reserve bank (with respect to any

15 loan by such bank which is outstanding for

16 more than 30 days while the insured depository

17 institution is critically undercapitalized) within

18 the 1-year period before the failure of the in19 sured depository institution whether in the form

20 of a loan, a payment to depositors or other

21 creditors, the assumption of liabilities, or other22 wise.

23 ‘‘(n) PAYMENT AS DISCHARGE OF LIABILITY.—Pay24 ment of an insured deposit to any person by the Adminis25 trator shall discharge the Administrator, and payment of
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1 a transferred deposit to any person by the new bank or

2 by an insured depository institution in which a transferred

3 deposit has been made available shall discharge the Ad4 ministrator and such new bank or other insured depository

5 institution, to the same extent that payment to such per6 son by the depository institution in default would have dis7 charged the institution from liability for the insured de8 posit.

9 ‘‘(o) RECOGNITION OF OWNERS.—Except as other10 wise prescribed by the Administrator, the Administrator,

11 any new bank, and any other insured depository institu12 tion shall not be required to recognize as the owner of

13 any portion of a deposit appearing on the records of the

14 depository institution in default under a name other than

15 that of the claimant, any person whose name or interest

16 as such owner is not disclosed on the records of such de17 pository institution in default as part owner of said de18 posit, if such recognition would increase the aggregate

19 amount of the insured deposits in such depository institu20 tion in default.

21 ‘‘(p) OFFSETS FOR OTHER LIABILITIES.—The Ad22 ministrator may withhold payment of such portion of the

23 insured deposit of any depositor in a depository institution

24 in default as may be required to provide for the payment

25 of the amount of any liability of such depositor to the de-
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1 pository institution in default or the receiver for such in2 stitution, which is not offset against a claim due from such

3 depository institution, pending the determination and pay4 ment of such amount by such depositor or any other per5 son liable for such amount.

6 ‘‘(q) DISPOSITION OF UNCLAIMED ACCOUNTS.—

7 ‘‘(1) CASH DISTRIBUTIONS.—

8 ‘‘(A) IN GENERAL.—If, in connection with

9 any cash distribution under section 21C(d) to

10 insured depositors at any insured depository in11 stitution, any depositor fails to claim such pay12 ment for the depositor’s insured deposit from

13 the Administrator before the later of—

14 ‘‘(i) the end of the 3-month period be15 ginning on the date on which the Adminis16 trator mailed a notice of the distribution to

17 the depositor at the last-known address for

18 the depositor on the books of the institu19 tion; and

20 ‘‘(ii) the end of the 18-month period

21 beginning on the date of the appointment

22 of a receiver for such institution,

23 the Administrator shall notify the appropriate

24 State and offer to transfer to the custody of

25 such State an amount equal to the insured de-
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1 posit of such depositor at such institution for

2 disposition by such State in accordance with

3 any State law which provides for the disposition

4 of abandoned or unclaimed property in the

5 State.

6 ‘‘(B) DISPOSITION OF CLAIMS IF STATE

7 DOES NOT ACCEPT CUSTODY.—

8 ‘‘(i) AVAILABILITY TO DEPOSITOR.—If

9 the appropriate State does not accept the

10 custody of the amount of any insured de11 posit which the Administrator offers to

12 transfer under subparagraph (A), the Ad13 ministrator shall permit the depositor (on

14 whose behalf such transfer was offered) to

15 make a claim against the Administrator

16 for an amount equal to the insured de17 posit.

18 ‘‘(ii) TERMINATION OF CLAIM AT END

19 OF RECEIVERSHIP.—If a depositor de20 scribed in clause (i) fails to make a claim

21 under such clause for the amount of the

22 insured deposit of such depositor at the in23 sured depository institution before the ter24 mination of the receivership—
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1 ‘‘(I) all rights of the depositor

2 against the Administrator with re3 spect to such insured deposit shall be

4 barred; and

5 ‘‘(II) notwithstanding any provi6 sion of State law, the insured deposit

7 shall become the property of the Ad8 ministrator.

9 ‘‘(C) DISPOSITION OF CLAIMS IF STATE

10 DOES ACCEPT CUSTODY.—If the appropriate

11 State does accept the custody of the amount of

12 any insured deposit which the Administrator of13 fers to transfer under subparagraph (A), all

14 rights of the depositor against the Adminis15 trator with respect to such deposit shall be

16 barred as of the date of the transfer.

17 ‘‘(D) REVERSION TO ADMINISTRATOR

18 AFTER 10 YEARS AND TERMINATION OF ALL

19 CLAIMS OF DEPOSITOR.—If an insured deposit

20 is transferred to the custody of the appropriate

21 State and is not claimed by the depositor before

22 the end of the 10-year period beginning on the

23 date of the transfer—

24 ‘‘(i) the deposit shall be transferred

25 back to the Administrator;
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1 ‘‘(ii) all rights of the depositor against

2 the State with respect to such insured de3 posit shall be barred as of the date of the

4 transfer to the Administrator; and

5 ‘‘(iii) notwithstanding any provision of

6 State law, the insured deposit shall become

7 the property of the Administrator.

8 ‘‘(2) TRANSFERRED DEPOSITS.—

9 ‘‘(A) IN GENERAL.—If the Administrator

10 satisfies the Administrator’s obligation under

11 section 21C(d)(1) by making available to each

12 depositor a transferred deposit in an insured

13 depository institution (including a new bank or

14 bridge bank), all rights of the depositor against

15 the Administrator with respect to the trans16 ferred deposit shall be barred as of the date of

17 the transfer except to the extent otherwise pro18 vided under subparagraph (B).

19 ‘‘(B) OFFER TO TRANSFER TO STATES.—

20 If any depositor fails to claim a transferred de21 posit from the insured depository institution to

22 which such transfer was made under section

23 21C(d)(1) before the end of the 18-month pe24 riod beginning on the date of the deposit trans25 fer to such institution—
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1 ‘‘(i) the institution shall transfer the

2 insured deposit back to the Administrator;

3 ‘‘(ii) the Administrator shall notify

4 the appropriate State and offer to transfer

5 to the custody of such State an amount

6 equal to the insured deposit of such deposi7 tor at such institution for disposition by

8 such State in accordance with any State

9 law which provides for the disposition of

10 abandoned or unclaimed property in the

11 State; and

12 ‘‘(iii) subparagraphs (B), (C), and (D)

13 of paragraph (1) shall apply with respect

14 to such deposit as of the date the Adminis15 trator notifies the appropriate State pursu16 ant to clause (ii).

17 ‘‘(3) APPROPRIATE STATE DEFINED.—For pur18 poses of this subsection, the term ‘appropriate State’

19 means, with respect to any insured deposit for which

20 a cash distribution or transferred deposit is made

21 available under section 21C(d), the State whose laws

22 providing for the disposition of abandoned or un23 claimed property would have applied to such deposit

24 if no conservator or receiver had been appointed for
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1 the depository institution (as of the date of the dis2 tribution or transfer).’’.

3 (b) PAYMENT OF INSURED DEPOSITS AND OTHER

4 RESOLUTION COSTS BY FDIC.—Section 11 of the Federal

5 Deposit Insurance Act (12 U.S.C. 1821(f)) is amended by

6 striking subsections (f) and (g) and inserting the following

7 new subsections:

8 ‘‘(f) TRANSFERS TO RESOLUTION, ASSET MANAGE9 MENT, AND LIQUIDATION AGENCY.—

10 ‘‘(1) IN GENERAL.—Upon receipt of a request

11 from the Administrator of the Resolution, Asset

12 Management, and Liquidation Agency under section

13 13(c)(11) of this Act or section 21C(d) of the Fed14 eral Home Loan Bank Act, the Corporation shall

15 transfer to the Administrator the amount requested.

16 ‘‘(2) PAYMENTS FOR INSURED DEPOSITS.—All

17 transfers under paragraph (1) by the Corporation

18 pursuant to a request under section 21C(d) of the

19 Federal Home Loan Bank Act—

20 ‘‘(A) with respect to a closed Bank Insur21 ance Fund member, shall be made only from

22 the Bank Insurance Fund; and

23 ‘‘(B) with respect to a closed Savings As24 sociation Insurance Fund member, shall be
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1 made only from the Savings Association Insur2 ance Fund.

3 ‘‘(3) PAYMENTS FOR SECTION 13(c) ASSIST4 ANCE.—All transfers under paragraph (1) by the

5 Corporation pursuant to a request under section

6 13(c)(11) shall be made in accordance with section

7 13(c)(12).

8 ‘‘(g) CLAIM OF CORPORATION AGAINST ADMINIS9 TRATOR.—In the case of any transfer to the Administrator

10 under subsection (f) with respect to any insured depository

11 institution, the Corporation shall have a claim against the

12 Administrator of the Resolution, Asset Management, and

13 Liquidation Agency for the amount by which the amount

14 realized by the Administrator pursuant to the subrogation

15 under section 21C(e) of the Federal Home Loan Bank Act

16 exceeds the administrative expenses incurred by the Ad17 ministrator as receiver of such institution (to the extent

18 such excess amount does not exceed the amount of the

19 transfer).’’.

20 (c) ASSISTANCE AND ACQUISITION AUTHORITY OF

21 ADMINISTRATOR AND FDIC.—

22 (1) ASSISTANCE POWERS OF THE AGENCY AND

23 THE FDIC.—Section 13(c) of the Federal Deposit In24 surance Act (12 U.S.C. 1823) is amended to read as

25 follows:
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1 ‘‘(c) FINANCIAL ASSISTANCE FOR FAILED OR FAIL2 ING INSURED DEPOSITORY INSTITUTIONS.—

3 ‘‘(1) ASSISTANCE AUTHORIZED.—The appro4 priate agency may, in the sole discretion of the head

5 of the agency and upon such terms and conditions

6 as the head of the agency may prescribe, to make

7 loans to, to make deposits in, to purchase the assets

8 or securities of, to assume the liabilities of, or to

9 make contributions to, any insured depository insti10 tution—

11 ‘‘(A) if such action is taken to prevent the

12 default of such insured depository institution;

13 ‘‘(B) if, with respect to an insured deposi14 tory institution in default, such action is taken

15 to restore such institution to normal operation;

16 or

17 ‘‘(C) if, when severe financial conditions

18 exist which threaten the stability of a signifi19 cant number of insured depository institutions

20 or of insured depository institutions possessing

21 significant financial resources, such action is

22 taken in order to lessen the risk to the appro23 priate agency posed by such insured depository

24 institution under such threat of instability.
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1 ‘‘(2) ASSISTANCE IN CONNECTION WITH MERG2 ERS AND ACQUISITIONS.—

3 ‘‘(A) IN GENERAL.—In order to facilitate a

4 merger or consolidation of a qualified insured

5 depository institution with another insured de6 pository institution, the sale of any asset of, or

7 the assumption of any liability of, a qualified

8 insured depository institution by another in9 sured depository institution, or the acquisition

10 of the stock of a qualified insured depository in11 stitution, the appropriate agency may, in the

12 sole discretion of the head of the agency and

13 upon such terms and conditions as the head of

14 the agency may prescribe—

15 ‘‘(i) purchase any such assets or as16 sume any such liabilities;

17 ‘‘(ii) make loans or contributions to,

18 or deposits in, or purchase the securities

19 of, the acquiring insured depository insti20 tution or the company which controls or

21 will acquire control of the acquiring in22 sured depository institution; and

23 ‘‘(iii) guarantee the acquiring insured

24 depository institution, or the company

25 which controls or will acquire control of
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1 the acquiring insured depository institu2 tion, against loss by reason of such institu3 tion’s acquisition of a qualified insured de4 pository institution or by reason of such

5 company acquiring control of such acquir6 ing insured depository institution.

7 ‘‘(B) STAY OF OTHER ACTION ON RE8 QUEST.—At the request of the appropriate

9 agency, any action to which the appropriate

10 agency is or becomes a party by acquiring any

11 asset or exercising any other authority under

12 this section shall be stayed by the court of ju13 risdiction for a period of 60 days.

14 ‘‘(C) QUALIFIED INSURED DEPOSITORY IN15 STITUTION DEFINED.—For purposes of sub16 paragraph (A), the term ‘qualified insured de17 pository institution’ means an insured deposi18 tory institution which—

19 ‘‘(i) is in default;

20 ‘‘(ii) in the judgment of the Board of

21 Directors, is in danger of default; or

22 ‘‘(iii) when severe financial conditions

23 exist which threaten the stability of a sig24 nificant number of insured depository in25 stitutions or of insured depository institu-
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1 tions possessing significant financial re2 sources, is determined by the appropriate

3 agency, in the sole discretion of the head

4 of the agency, to require assistance under

5 subparagraph (A) in order to lessen the

6 risk to any appropriate agency or deposit

7 insurance fund posed by such insured de8 pository institution under such threat of

9 instability.

10 ‘‘(D) ADDITIONAL DEFINITIONS.—For

11 purposes of this paragraph—

12 ‘‘(i) ACQUIRING INSURED DEPOSITORY

13 INSTITUTION.—The term ‘acquiring in14 sured depository institution’ means an in15 sured depository institution which acquires

16 (as defined in subsection (f)(8)(B)) an17 other insured depository institution.

18 ‘‘(ii) ACQUISITION.—The term ‘acqui19 sition’ means a transaction described in

20 any clause of subsection (f)(8)(B).

21 ‘‘(3) APPROPRIATE AGENCY DEFINED.—For

22 purposes of this subsection and subsections (f) and

23 (k)—

24 ‘‘(A) IN GENERAL.—The term ‘appropriate

25 agency’ means—
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1 ‘‘(i) the Corporation, in the case of

2 any payments authorized to be made under

3 this section to, or on behalf of, an insured

4 depository institution for which a conserva5 tor or receiver has not been appointed; and

6 ‘‘(ii) the Resolution, Asset Manage7 ment, and Liquidation Agency, in the case

8 of any payments authorized to be made

9 under this section to, or on behalf of, an

10 insured depository institution for which a

11 conservator or receiver has been appointed.

12 ‘‘(B) HEAD OF THE APPROPRIATE AGEN13 CY.—The term ‘head of the appropriate agency’

14 means—

15 ‘‘(i) the Board of Directors, in the

16 case of the Corporation; and

17 ‘‘(ii) the Administrator, in the case of

18 the Resolution, Asset Management, and

19 Liquidation Agency.

20 ‘‘(4) LEAST-COST RESOLUTION REQUIRED.—

21 ‘‘(A) IN GENERAL.—Notwithstanding any

22 other provision of this Act, the appropriate

23 agency may not exercise any authority under

24 this subsection or subsection (d), (f), (h), or (k)
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1 of this section with respect to any insured de2 pository institution unless—

3 ‘‘(i) the agency determines that the

4 exercise of such authority is necessary to

5 meet the obligation of the Corporation to

6 provide insurance coverage for the insured

7 deposits in such institution; and

8 ‘‘(ii) the total amount of any expendi9 tures by the Administrator or the Corpora10 tion and any obligations incurred by the

11 Administrator or the Corporation (includ12 ing any immediate and long-term obliga13 tion of any such agency and any direct or

14 contingent liability for future payment by

15 any such agency) in connection with the

16 exercise of any such authority with respect

17 to such institution is the least costly to the

18 applicable deposit insurance fund of all

19 possible methods for meeting any obliga20 tion of the Administrator or the Corpora21 tion under this section or section 21C or

22 21D of the Federal Home Loan Bank Act.

23 ‘‘(B) DETERMINING LEAST COSTLY AP24 PROACH.—In determining how to satisfy the

25 appropriate agency’s obligations to an institu-
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1 tion’s insured depositors at the least possible

2 cost to the deposit insurance fund, the agency

3 shall comply with the following provisions:

4 ‘‘(i) PRESENT-VALUE ANALYSIS; DOC5 UMENTATION REQUIRED.—The appropriate

6 agency shall—

7 ‘‘(I) evaluate alternatives on a

8 present-value basis, using a realistic

9 discount rate;

10 ‘‘(II) document that evaluation

11 and the assumptions on which the

12 evaluation is based, including any as13 sumptions with regard to interest

14 rates, asset recovery rates, asset hold15 ing costs, and payment of contingent

16 liabilities; and

17 ‘‘(III) retain the documentation

18 for not less than 5 years.

19 ‘‘(ii) FOREGONE TAX REVENUES.—

20 Federal tax revenues that the Government

21 would forego as the result of a proposed

22 transaction, to the extent reasonably ascer23 tainable, shall be treated as if they were

24 revenues foregone by the deposit insurance

25 fund.
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1 ‘‘(C) TIME OF DETERMINATION.—

2 ‘‘(i) GENERAL RULE.—For purposes

3 of this subsection, the determination of the

4 costs of providing any assistance under

5 paragraph (1) or (2) or any other provision

6 of this section with respect to any deposi7 tory institution shall be made as of the

8 date on which the appropriate agency

9 makes the determination to provide such

10 assistance to the institution under this sec11 tion.

12 ‘‘(ii) RULE FOR LIQUIDATIONS.—For

13 purposes of this subsection, the determina14 tion of the costs of liquidation of any de15 pository institution shall be made as of the

16 earliest of—

17 ‘‘(I) the date on which a con18 servator is appointed for such institu19 tion;

20 ‘‘(II) the date on which a receiver

21 is appointed for such institution; or

22 ‘‘(III) the date on which the ap23 propriate agency makes any deter24 mination to provide any assistance
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1 under this section with respect to such

2 institution.

3 ‘‘(D) LIQUIDATION COSTS.—In determin4 ing the cost of liquidating any depository insti5 tution for the purpose of comparing the costs

6 under subparagraph (A) (with respect to such

7 institution), the amount of such cost may not

8 exceed the amount which is equal to the sum of

9 the insured deposits of such institution as of

10 the earliest of the dates described in subpara11 graph (C), minus the present value of the total

12 net amount the Administrator could reasonably

13 expect to receive from the disposition of the as14 sets of such institution in connection with such

15 liquidation.

16 ‘‘(E) DEPOSIT INSURANCE FUNDS AVAIL17 ABLE FOR INTENDED PURPOSE ONLY.—

18 ‘‘(i) IN GENERAL.—After December

19 31, 1994, or at such earlier time as the ap20 propriate agency determines to be appro21 priate, the appropriate agency may not

22 take any action, directly or indirectly, with

23 respect to any insured depository institu24 tion that would have the effect of increas-
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•HR 1713 IH

1 ing losses to any insurance fund by pro2 tecting—

3 ‘‘(I) depositors for more than the

4 insured portion of deposits (deter5 mined without regard to whether such

6 institution is liquidated); or

7 ‘‘(II) creditors other than deposi8 tors.

9 ‘‘(ii) DEADLINE FOR REGULATIONS.—

10 The appropriate agency shall prescribe reg11 ulations to implement clause (i) not later

12 than January 1, 1994, and the regulations

13 shall take effect not later than January 1,

14 1995.

15 ‘‘(iii) PURCHASE AND ASSUMPTION

16 TRANSACTIONS.—No provision of this sub17 paragraph shall be construed as prohibit18 ing the Administrator from allowing any

19 person who acquires any assets or assumes

20 any liabilities of any insured depository in21 stitution for which the Administrator has

22 been appointed conservator or receiver to

23 acquire uninsured deposit liabilities of such

24 institution so long as the insurance fund

25 does not incur any loss with respect to
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•HR 1713 IH

1 such deposit liabilities in an amount great2 er than the loss which would have been in3 curred with respect to such liabilities if the

4 institution had been liquidated.

5 ‘‘(F) DISCRETIONARY DETERMINATIONS.—

6 Any determination which the appropriate agen7 cy may make under this paragraph shall be

8 made in the sole discretion of the agency.

9 ‘‘(G) SYSTEMIC RISK.—

10 ‘‘(i) EMERGENCY DETERMINATION BY

11 SECRETARY OF THE TREASURY.—Notwith12 standing subparagraphs (A) and (E), if,

13 upon the written recommendation of the

14 head of the appropriate agency (in the case

15 of the Corporation, upon a vote of not less

16 than two-thirds of the members of the

17 Board of Directors) and the Board of Gov18 ernors of the Federal Reserve System

19 (upon a vote of not less than two-thirds of

20 the members of such Board), the Secretary

21 of the Treasury (in consultation with the

22 President) determines that—

23 ‘‘(I) the appropriate agency’s

24 compliance with subparagraphs (A)

25 and (E) with respect to an insured de-
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•HR 1713 IH

1 pository institution would have serious

2 adverse effects on economic conditions

3 or financial stability; and

4 ‘‘(II) any action or assistance

5 under this subparagraph would avoid

6 or mitigate such adverse effects,

7 the agency may take other action or pro8 vide assistance under this section as nec9 essary to avoid or mitigate such effects.

10 ‘‘(ii) REPAYMENT OF LOSS.—The Cor11 poration shall recover, to the appropriate

12 insurance fund, any loss arising from any

13 action taken or assistance provided with

14 respect to an insured depository institution

15 under clause (i) expeditiously from 1 or

16 more emergency special assessments on the

17 members of the insurance fund (of which

18 such institution is a member) equal to the

19 product of—

20 ‘‘(I) an assessment rate estab21 lished by the Corporation; and

22 ‘‘(II) the amount of each mem23 ber’s average total assets during the

24 semiannual period, minus the sum of

25 the amount of the member’s average
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1 total tangible equity and the amount

2 of the member’s average total subordi3 nated debt.

4 ‘‘(iii) DOCUMENTATION REQUIRED.—

5 The Secretary of the Treasury shall—

6 ‘‘(I) document any determination

7 under clause (i); and

8 ‘‘(II) retain the documentation

9 for review under clause (iv).

10 ‘‘(iv) GAO REVIEW.—The Comptroller

11 General of the United States shall review

12 and report to the Congress on any deter13 mination under clause (i), including—

14 ‘‘(I) the basis for the determina15 tion;

16 ‘‘(II) the purpose for which any

17 action was taken pursuant to such

18 clause; and

19 ‘‘(III) the likely effect of the de20 termination and such action on the in21 centives and conduct of insured depos22 itory institutions and uninsured de23 positors.

24 ‘‘(v) NOTICE.—
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1 ‘‘(I) IN GENERAL.—The Sec2 retary of the Treasury shall provide

3 written notice of any determination

4 under clause (i) to the Committee on

5 Banking, Housing, and Urban Affairs

6 of the Senate and the Committee on

7 Banking, Finance and Urban Affairs

8 of the House of Representatives.

9 ‘‘(II) DESCRIPTION OF BASIS OF

10 DETERMINATION.—The notice under

11 subclause (I) shall include a descrip12 tion of the basis for any determination

13 under clause (i).

14 ‘‘(H) RULE OF CONSTRUCTION.—No provi15 sion of law shall be construed as permitting the

16 appropriate agency to take any action prohib17 ited by this paragraph unless such provision ex18 pressly provides, by direct reference to this

19 paragraph, that this paragraph shall not apply

20 with respect to such action.

21 ‘‘(5) PROHIBITION ON PURCHASE OF COMMON

22 STOCK.—

23 ‘‘(A) IN GENERAL.—The appropriate agen24 cy may not use any authority under this sub-
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•HR 1713 IH

1 section to purchase the voting or common stock

2 of an insured depository institution.

3 ‘‘(B) AUTHORITY TO ENTER INTO AGREE4 MENTS.—Subparagraph (A) shall not be con5 strued as limiting the ability of the appropriate

6 agency to enter into and enforce covenants and

7 agreements that the agency determines to be

8 necessary to protect the financial interest of the

9 agency and the deposit insurance funds.

10 ‘‘(6) TAX DEFERRED STATUS.—

11 ‘‘(A) IN GENERAL.—During any period in

12 which an insured depository institution has re13 ceived assistance under this subsection and

14 such assistance is still outstanding, such in15 sured depository institution may defer the pay16 ment of any State or local tax which is deter17 mined on the basis of the deposits held by such

18 insured depository institution or of the interest

19 or dividends paid on such deposits.

20 ‘‘(B) REPAYMENT OF DEFERRED TAXES.—

21 ‘‘(i) IN GENERAL.—When an insured

22 depository institution referred to in sub23 paragraph (A) no longer has any outstand24 ing assistance, such insured depository in-
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•HR 1713 IH

1 stitution shall pay all taxes which were de2 ferred under subparagraph (A).

3 ‘‘(ii) REPAYMENT PLAN.—Payments

4 pursuant to clause (i) shall be made in ac5 cordance with a payment plan established

6 by the appropriate agency, after consulta7 tion with the applicable State and local

8 taxing authorities.

9 ‘‘(7) RULE RELATING TO TRANSFERS OF TRUST

10 BUSINESS.—Any transfer under paragraph (2)(A) of

11 any assets or liabilities associated with any trust

12 business of an insured depository institution in de13 fault shall be effective without any State or Federal

14 approval, assignment, or consent with respect to

15 such transfer.

16 ‘‘(8) ASSISTANCE BEFORE APPOINTMENT OF

17 CONSERVATOR OR RECEIVER.—

18 ‘‘(A) IN GENERAL.—Subject to the least19 cost provisions of paragraph (4), the Corpora20 tion shall consider providing direct financial as21 sistance under this section for depository insti22 tutions before the appointment of a conservator

23 or receiver for such institution only under the

24 following circumstances:
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•HR 1713 IH

1 ‘‘(i) TROUBLED CONDITION CRI2 TERIA.—The Corporation determines—

3 ‘‘(I) grounds for the appointment

4 of a conservator or receiver exist or

5 likely will exist in the future unless

6 the depository institution’s capital lev7 els are increased; and

8 ‘‘(II) it is unlikely that the insti9 tution can meet all currently applica10 ble capital standards without assist11 ance.

12 ‘‘(ii) OTHER CRITERIA.—The deposi13 tory institution meets the following cri14 teria:

15 ‘‘(I) The appropriate Federal

16 banking agency and the Corporation

17 have determined that, during such pe18 riod of time preceding the date of

19 such determination as the agency or

20 the Corporation considers to be rel21 evant, the institution’s management

22 has been competent and has complied

23 with applicable laws, rules, and super24 visory directives and orders.
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•HR 1713 IH

1 ‘‘(II) The institution’s manage2 ment did not engage in any insider

3 dealing, speculative practice, or other

4 abusive activity.

5 ‘‘(B) PUBLIC DISCLOSURE.—Any deter6 mination under this paragraph to provide as7 sistance under this section shall be made in

8 writing and published in the Federal Register.

9 ‘‘(9) SUBORDINATION OF ASSISTANCE.—Any

10 assistance provided under this subsection may be in

11 subordination to the rights of depositors and other

12 creditors.

13 ‘‘(10) ITEMS IN ANNUAL REPORT.—In the ap14 propriate agency’s annual report to the Congress,

15 the agency shall report the total amount saved, or

16 the amount which the agency estimates has been

17 saved, by exercising any authority under this sub18 section.

19 ‘‘(11) REQUEST FOR FUNDS FROM FDIC.—

20 Upon making a determination to make any payment

21 under this subsection to or on behalf of any insured

22 depository institution which is a Bank Insurance

23 Fund member or a Savings Association Insurance

24 Fund member, the Administrator shall request the

25 Federal Deposit Insurance Corporation to transfer
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•HR 1713 IH

1 to the Administrator the amount required for the

2 Administrator to make such payment.

3 ‘‘(12) SOURCE OF FUNDS.—

4 ‘‘(A) BANK INSURANCE FUND.—If the de5 pository institution to which, or on whose be6 half, a payment is made under this subsection

7 is a Bank Insurance Fund member, only funds

8 held in the Bank Insurance Fund may be—

9 ‘‘(i) used by the Corporation to make

10 such payments; or

11 ‘‘(ii) transferred to the Administrator

12 to make such payments pursuant to a re13 quest under paragraph (11).

14 ‘‘(B) SAVINGS ASSOCIATION INSURANCE

15 FUND.—If the depository institution to which,

16 or on whose behalf, a payment is made under

17 this subsection is a Savings Association Insur18 ance Fund member (including institutions for

19 which the Resolution Trust Corporation was ap20 pointed as a conservator or receiver before such

21 corporation was abolished), only funds held in

22 the Savings Association Insurance Fund may

23 be—

24 ‘‘(i) used by the Corporation to make

25 such payments; or
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•HR 1713 IH

1 ‘‘(ii) transferred to the Administrator

2 to make such payments pursuant to a re3 quest under paragraph (11).

4 ‘‘(C) ASSOCIATIONS SUBJECT TO FSLIC

5 RESOLUTION FUND.—If the depository institu6 tion to which, or on whose behalf, a payment is

7 made under this subsection is an institution for

8 which the Administrator has been appointed

9 conservator or receiver under section 11A(a)(5)

10 of the Federal Deposit Insurance Act as the

11 successor of the Corporation, funds for such

12 payments shall be obtained by the Adminis13 trator from the Administrator’s own resources

14 under subsections (b) and (c) of section 11A.

15 ‘‘(13) ASSISTANCE FOR ACQUISITIONS BY

16 OTHER PERSONS.—The appropriate agency may pro17 vide any person which acquires (as defined in sub18 section (f)(8)(B)) an insured depository institution

19 under subsection (f) or (k) with any financial assist20 ance as the agency could provide to an insured de21 pository institution under this subsection.’’.

22 (2) INTERSTATE EMERGENCY BANK ACQUISI23 TION AUTHORITY OF THE AGENCY AND THE FDIC.—

24 Section 13(f) of the Federal Deposit Insurance Act

25 (12 U.S.C. 1823(f)) is amended to read as follows:
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•HR 1713 IH

1 ‘‘(f) ASSISTED EMERGENCY INTERSTATE ACQUISI2 TIONS.—

3 ‘‘(1) AUTHORITY AVAILABLE ONLY WITH SUB4 SECTION (c) ASSISTANCE.—This subsection shall

5 apply only to an acquisition of an insured bank or

6 a holding company by an out-of-State bank or sav7 ings association or an out-of-State holding company

8 for which the appropriate agency provides assistance

9 under subsection (c).

10 ‘‘(2) FAILED BANKS.—

11 ‘‘(A) IN GENERAL.—If an insured bank

12 with total assets of $500,000,000 or more (as

13 determined from its most recent report of con14 dition) is in default, the Administrator, as re15 ceiver, may, in the Administrator’s discretion

16 and upon such terms and conditions as the Ad17 ministrator may determine, arrange the sale of

18 assets of the bank in default and the assump19 tion of the liabilities of the bank in default, in20 cluding the sale of such assets to and the as21 sumption of such liabilities by an insured depos22 itory institution which is—

23 ‘‘(i) located in the State in which the

24 bank in default was chartered; and
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•HR 1713 IH

1 ‘‘(ii) controlled by an out-of-State

2 bank or an out-of-State depository institu3 tion holding company.

4 ‘‘(B) APPROVAL OF OTHER REGULATORY

5 AGENCIES.—No transaction may be approved

6 by the Administrator under this paragraph

7 without the approval of the primary Federal or

8 State supervisor of all parties to the trans9 action, to the extent such approval is otherwise

10 lawfully required.

11 ‘‘(C) CONSULTATION WITH STATE BANK

12 SUPERVISOR.—

13 ‘‘(i) IN GENERAL.—Before making a

14 determination to take any action under

15 subparagraph (A), the Administrator shall

16 consult the State bank supervisor of the

17 State in which the insured bank in default

18 was chartered.

19 ‘‘(ii) OPPORTUNITY FOR OBJEC20 TION.— The State bank supervisor shall be

21 given a reasonable opportunity, and in no

22 event less than 48 hours, to object to the

23 approval by the Administrator of a trans24 action under this paragraph.
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•HR 1713 IH

1 ‘‘(iii) NOTICE BEFORE APPOINT2 MENT.—Notice under clause (ii) may be

3 provided by the Administrator with respect

4 to a bank in default before a receiver is ap5 pointed for the bank, if the Administrator

6 determines an appointment of a receiver is

7 pending.

8 ‘‘(iv) WRITTEN NOTICE OF DETER9 MINATION.—If the State bank supervisor

10 objects to a transaction under this para11 graph during the period available for such

12 objection in accordance with clause (ii), the

13 Administrator shall provide to the State

14 bank supervisor a written certification of

15 the Administrator’s determination with re16 spect to such objection as soon as prac17 ticable after the determination is made.

18 ‘‘(3) EMERGENCY ACQUISITIONS OF INSURED

19 BANKS IN DANGER OF DEFAULT.—

20 ‘‘(A) ACQUISITION OF INSURED BANKS IN

21 DANGER OF DEFAULT.—1 or more out-of-State

22 banks or out-of-State depository institution

23 holding companies may acquire and retain all or

24 part of the shares or assets of, or otherwise ac25 quire and retain—
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1 ‘‘(i) an insured bank in danger of de2 fault which has total assets of

3 $500,000,000 or more; or

4 ‘‘(ii) 2 or more affiliated insured

5 banks in danger of default which have ag6 gregate total assets of $500,000,000 or

7 more, if the aggregate total assets of such

8 banks is equal to or greater than 33 per9 cent of the aggregate total assets of all af10 filiated insured banks.

11 ‘‘(B) ACQUISITION OF A HOLDING COM12 PANY OR OTHER BANK AFFILIATE.—If 1 or

13 more out-of-State banks or out-of-State deposi14 tory institution holding companies acquire 1 or

15 more affiliated insured banks under subpara16 graph (A) the aggregate total assets of which is

17 equal to or greater than 33 percent of the ag18 gregate total assets of all affiliated insured

19 banks, any such out-of-State bank or out-of20 State insured depository holding company may

21 also, as part of the same transaction, acquire

22 and retain the shares or assets of, or otherwise

23 acquire and retain—
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•HR 1713 IH

1 ‘‘(i) the holding company which con2 trols the affiliated insured banks so ac3 quired; or

4 ‘‘(ii) any other affiliated insured bank.

5 ‘‘(C) REQUEST FOR ASSISTANCE BY COR6 PORATE BOARD OF DIRECTORS.—The Corpora7 tion may assist an acquisition or merger au8 thorized under subparagraph (A) only if the

9 board of directors or trustees of each insured

10 bank in danger of default which is being ac11 quired has requested in writing that the Cor12 poration assist the acquisition or merger.

13 ‘‘(D) CERTAIN ACQUISITIONS AUTHORIZED

14 AFTER ASSISTANCE IS PROVIDED.—Notwith15 standing paragraph (1), if—

16 ‘‘(i) at any time after the date of the

17 enactment of the Financial Institutions

18 Emergency Acquisitions Amendments of

19 1987, the Corporation provides any assist20 ance under subsection (c) to an insured

21 bank; and

22 ‘‘(ii) at the time such assistance is

23 granted, the insured bank, the holding

24 company which controls the insured bank

25 (if any), or any affiliated insured bank is
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1 eligible to be acquired by an out-of-State

2 bank or out-of-State depository institution

3 holding company under this paragraph,

4 the insured bank, the holding company, and

5 such other affiliated insured bank shall remain

6 eligible, subject to such terms and conditions as

7 the Corporation (in the discretion of the Board

8 of Directors) may impose, to be acquired by an

9 out-of-State bank or out-of-State depository in10 stitution holding company under this paragraph

11 as long as any portion of such assistance re12 mains outstanding.

13 ‘‘(E) STATE BANK SUPERVISOR AP14 PROVAL.—The Corporation may take no final

15 action in connection with any acquisition under

16 this paragraph unless the State bank supervisor

17 of the State in which the bank in danger of de18 fault is located approves the acquisition.

19 ‘‘(F) OTHER REQUIREMENTS NOT AF20 FECTED.—No provision of this paragraph shall

21 be construed as affecting any other requirement

22 under Federal or State law for regulatory ap23 proval of an acquisition under this paragraph.

24 ‘‘(G) ACQUISITION MAY BE CONDITIONED

25 ON RECEIPT OF CONSIDERATION FOR CORPORA-
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1 TION’S ASSISTANCE.—Any acquisition described

2 in subparagraph (D) may be conditioned on the

3 receipt of such consideration for the Corpora4 tion’s assistance to the extent the Board of Di5 rectors deems appropriate.

6 ‘‘(4) COORDINATION WITH OTHER PROVISIONS

7 OF LAW.—

8 ‘‘(A) ACQUISITIONS NOT SUBJECT TO CER9 TAIN OTHER LAWS.—Section 3(d) of the Bank

10 Holding Company Act of 1956, any provision of

11 State law, and section 10(e)(3) of the Home

12 Owners’ Loan Act shall not apply so as to pro13 hibit any acquisition under paragraph (2) or

14 (3), except that an out-of-State bank may make

15 such an acquisition only if such ownership is

16 otherwise specifically authorized.

17 ‘‘(B) OPERATION OF BRANCHES.—Any

18 subsidiary created by operation of this sub19 section may retain and operate any existing

20 branch or branches of the institution merged

21 with or acquired under paragraph (2) or (3),

22 but otherwise shall be subject to the conditions

23 upon which a national bank may establish and

24 operate branches in the State in which such in25 sured institution is located.
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1 ‘‘(C) CHANGE OF HEADQUARTERS.—No

2 insured institution acquired under this sub3 section shall, after such acquisition, move the

4 principal office or any branch office of the insti5 tution which, if the institution were a national

6 bank, the institution would be prohibited from

7 moving.

8 ‘‘(D) SUBSEQUENT NONEMERGENCY

9 INTERSTATE ACQUISITIONS SUBJECT TO STATE

10 LAW.—

11 ‘‘(i) IN GENERAL.—Any out-of-State

12 bank holding company which acquires con13 trol of an insured bank in any State under

14 paragraph (2) or (3) may acquire any

15 other insured bank and establish branches

16 in such State to the same extent as a bank

17 holding company whose insured bank sub18 sidiaries’ operations are principally con19 ducted in such State may acquire any

20 other insured bank or establish branches.

21 ‘‘(ii) DELAYED DATE OF APPLICABIL22 ITY.—Clause (i) shall not apply with re23 spect to any out-of-State bank holding

24 company referred to in such clause before

25 the earlier of—
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1 ‘‘(I) the end of the 2-year period

2 beginning on the date the acquisition

3 referred to in such clause with respect

4 to such company is consummated; or

5 ‘‘(II) the end of any period estab6 lished under State law during which

7 such out-of-State bank holding com8 pany may not be treated as a bank

9 holding company whose insured bank

10 subsidiaries’ operations are principally

11 conducted in such State for purposes

12 of acquiring other insured banks or

13 establishing bank branches.

14 ‘‘(iii) DETERMINATION OF PRIN15 CIPALLY CONDUCTED.—For purposes of

16 this subparagraph, the State in which the

17 operations of a holding company’s insured

18 bank subsidiaries are principally conducted

19 is the State determined under section 3(d)

20 of the Bank Holding Company Act of 1956

21 with respect to such holding company.

22 ‘‘(E) CERTAIN STATE INTERSTATE BANK23 ING LAWS INAPPLICABLE.—Any holding com24 pany which acquires control of any insured

25 bank or holding company under subparagraph
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•HR 1713 IH

1 (D) or paragraph (2) or (3) shall not, by reason

2 of such acquisition, be required under the law

3 of any State to divest any other insured bank

4 or be prevented from acquiring any other bank

5 or holding company.

6 ‘‘(5) SOLICITATION OF OFFERS.—In determin7 ing whether to arrange a sale of assets and assump8 tion of liabilities or an acquisition or a merger under

9 the authority of paragraph (2) or (3), the appro10 priate agency may solicit such offers or proposals as

11 are practicable from any prospective purchasers or

12 merger partners the agency determines, in the head

13 of the agency’s sole discretion, are qualified and are

14 capable of acquiring the assets and liabilities of the

15 bank in default or in danger of default.

16 ‘‘(6) CONSIDERATION OF OFFERS.—

17 ‘‘(A) LOWEST ACCEPTABLE OFFER.—If,

18 after receiving offers, the lowest acceptable

19 offer is from an offeror which is not an existing

20 in-State bank of the same type as the bank that

21 is in default or in danger of default (or, if such

22 bank is an insured bank other than a mutual

23 savings bank, the lowest acceptable offer is not

24 from an in-State holding company), the appro25 priate agency shall permit the offeror which
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1 makes the initial lowest acceptable offer and

2 each offeror who makes an offer the estimated

3 cost of which to the agency is within 15 percent

4 or $15,000,000, whichever is less, of the initial

5 lowest acceptable offer to submit a new offer.

6 ‘‘(B) MINIMIZE COST.—In considering au7 thorizations under this subsection, the appro8 priate agency shall give consideration to the

9 need to minimize the cost of financial assistance

10 and to the maintenance of specialized deposi11 tory institutions.

12 ‘‘(C) PRIORITIES.—The appropriate agen13 cy shall authorize transactions under this sub14 section in order of the following priorities:

15 ‘‘(i) First, between depository institu16 tions of the same type within the same

17 State.

18 ‘‘(ii) Second, between depository insti19 tutions of the same type—

20 ‘‘(I) in different States which by

21 statute specifically authorize such ac22 quisitions; or

23 ‘‘(II) in the absence of such stat24 utes, in different States which are

25 contiguous.
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1 ‘‘(iii) Third, between depository insti2 tutions of the same type in different States

3 other than the States described in clause

4 (ii).

5 ‘‘(iv) Fourth, between depository insti6 tutions of different types in the same

7 State.

8 ‘‘(v) Fifth, between depository institu9 tions of different types—

10 ‘‘(I) in different States which by

11 statute specifically authorize such ac12 quisitions; or

13 ‘‘(II) in the absence of such stat14 utes, in different States which are

15 contiguous.

16 ‘‘(vi) Sixth, between depository insti17 tutions of different types in different

18 States other than the States described in

19 clause (v).

20 ‘‘(D) MINORITY BANK PRIORITY.—In the

21 case of a minority-controlled bank, the appro22 priate agency shall seek an offer from other mi23 nority-controlled banks before proceeding with

24 the bidding priorities set forth in subparagraph

25 (B).
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1 ‘‘(E) AGENCY DETERMINATIONS ARE DE2 TERMINATIVE.—In determining the cost of of3 fers and reoffers, the appropriate agency’s cal4 culations and estimations shall be determina5 tive.

6 ‘‘(F) TIME LIMITS.—The appropriate

7 agency may set reasonable time limits on offers

8 and reoffers.

9 ‘‘(7) ANTITRUST PROVISION.—No transaction

10 may be authorized under paragraph (2) or (3)—

11 ‘‘(A) which would result in a monopoly, or

12 which would be in furtherance of any combina13 tion or conspiracy to monopolize or to attempt

14 to monopolize the business of banking in any

15 part of the United States;

16 ‘‘(B) whose effect in any section of the

17 country may be substantially to lessen competi18 tion, or to tend to create a monopoly, or which

19 in any other manner would be in restraint of

20 trade, unless the appropriate agency finds that

21 the anticompetitive effects of the proposed

22 transactions are clearly outweighed in the pub23 lic interest by the probable effect of the trans24 action in meeting the convenience and needs of

25 the community to be served; or
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1 ‘‘(C) if, in the opinion of the appropriate

2 agency, the acquisition threatens the safety and

3 soundness of the acquirer or does not result in

4 the future viability of the resulting depository

5 institution.

6 ‘‘(8) DEFINITION.—For purposes of this sub7 section—

8 ‘‘(A) IN-STATE DEPOSITORY INSTITUTION

9 OR IN-STATE HOLDING COMPANY.—The terms

10 ‘in-State depository institution’ and ‘in-State

11 holding company’ mean an existing insured de12 pository institution currently operating in the

13 State in which the bank in default or in danger

14 of default is chartered and a company that con15 trols an insured depository institution subsidi16 ary in the State in which the bank in default

17 or in danger of default is chartered, respec18 tively.

19 ‘‘(B) ACQUIRE.—The term ‘acquire’ means

20 to acquire, directly or indirectly, ownership or

21 control through—

22 ‘‘(i) an acquisition of shares;

23 ‘‘(ii) an acquisition of assets or as24 sumption of liabilities;

25 ‘‘(iii) a merger or consolidation; or
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1 ‘‘(iv) any similar transaction.

2 ‘‘(C) AFFILIATED INSURED BANK.—The

3 term ‘affiliated insured bank’ means—

4 ‘‘(i) when used in connection with a

5 reference to a depository institution hold6 ing company, an insured bank which is a

7 subsidiary of such holding company; and

8 ‘‘(ii) when used in connection with a

9 reference to 2 or more insured banks, in10 sured banks which are subsidiaries of the

11 same holding company.

12 ‘‘(D) SUBSIDIARY.—Notwithstanding sec13 tion 3(w)(4), the term ‘subsidiary’ has the

14 meaning given to such term in section 2(d) of

15 the Bank Holding Company Act of 1956.

16 ‘‘(E) LOWEST ACCEPTABLE OFFER.—The

17 term ‘lowest acceptable offer’ means the offer

18 presenting the lowest expense to the appro19 priate agencies that is in a form and with con20 ditions acceptable to the appropriate agency.

21 ‘‘(9) NO ASSISTANCE AUTHORIZED FOR CER22 TAIN SUBSIDIARIES OF HOLDING COMPANIES.—

23 ‘‘(A) IN GENERAL.—The appropriate agen24 cy shall not provide any assistance to a subsidi25 ary, other than a subsidiary that is an insured
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1 depository institution, of a holding company in

2 connection with any acquisition under this sub3 section.

4 ‘‘(B) INTERMEDIATE HOLDING COMPANY

5 PERMITTED.—This paragraph shall not be con6 strued as prohibiting an intermediate holding

7 company or an affiliate of an insured depository

8 institution from being a conduit for assistance

9 ultimately intended for an insured bank.

10 ‘‘(10) ANNUAL REPORT.—

11 ‘‘(A) REQUIRED.—In the appropriate

12 agency’s annual report to the Congress, the

13 agency shall include a report on the acquisitions

14 approved under this subsection during the pre15 ceding year.

16 ‘‘(B) CONTENTS.—The report required

17 under subparagraph (A) shall contain the fol18 lowing information:

19 ‘‘(i) The number of acquisitions under

20 this subsection.

21 ‘‘(ii) A brief description of each such

22 acquisition and the circumstances under

23 which such acquisition occurred.

24 ‘‘(11) DETERMINATION OF TOTAL ASSETS.—

25 For purposes of this subsection, the total assets of
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1 any insured bank shall be determined on the basis

2 of the most recent report of condition of such bank

3 which is available at the time of such determination.

4 ‘‘(12) ACQUISITION OF MINORITY BANK BY MI5 NORITY BANK HOLDING COMPANY WITHOUT REGARD

6 TO ASSET SIZE.—

7 ‘‘(A) IN GENERAL.—For the purpose of

8 ensuring continued minority control of a minor9 ity-controlled bank, paragraphs (2) and (3)

10 shall apply with respect to the acquisition of a

11 minority-controlled bank by an out-of-State mi12 nority-controlled depository institution or depos13 itory institution holding company without re14 gard to the fact that the total assets of such

15 minority-controlled bank is less than

16 $500,000,000.

17 ‘‘(B) DEFINITIONS.—For purposes of this

18 paragraph—

19 ‘‘(i) MINORITY BANK.—The term ‘mi20 nority bank’ means any depository institu21 tion described in clause (i), (ii), or (iii) of

22 section 19(b)(1)(A) of the Federal Reserve

23 Act—

24 ‘‘(I) more than 50 percent of the

25 ownership or control of which is held
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1 by one or more minority individuals;

2 and

3 ‘‘(II) more than 50 percent of

4 the net profit or loss of which accrues

5 to minority individuals.

6 ‘‘(ii) MINORITY.—The term ‘minority’

7 means any Black American, Native Amer8 ican, Hispanic American, or Asian Amer9 ican.’’.

10 (3) INSURED BRANCHES OF FOREIGN BANKS.—

11 Section 13(h) of the Federal Deposit Insurance Act

12 (12 U.S.C. 1823(h)) is amended to read as follows:

13 ‘‘(h) APPLICABILITY TO INSURED BRANCHES OF

14 FOREIGN BANKS.—The powers conferred on the appro15 priate agencies and the heads of such agencies (as such

16 terms are defined in subsection (c)(3)) by this section to

17 take action to reopen an insured depository institution in

18 default or to avert the default of an insured depository

19 institution may be used with respect to an insured branch

20 of a foreign bank if, in the judgment of the head of the

21 appropriate agency, the public interest in avoiding the

22 closing of such branch substantially outweighs any addi23 tional risk of loss to the Bank Insurance Fund which the

24 exercise of such powers would entail.’’.
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1 (4) EMERGENCY SAVINGS ASSOCIATION ACQUI2 SITION AUTHORITY OF THE AGENCY AND THE

3 FDIC.—Section 13(k) of the Federal Deposit Insur4 ance Act (12 U.S.C. 1923(k)) is amended to read as

5 follows:

6 ‘‘(k) EMERGENCY ACQUISITIONS.—

7 ‘‘(1) IN GENERAL.—

8 ‘‘(A) ACQUISITIONS AUTHORIZED.—

9 ‘‘(i) TRANSACTIONS DESCRIBED.—

10 Notwithstanding any provision of State

11 law, upon determining that severe financial

12 conditions threaten the stability of a sig13 nificant number of savings associations, or

14 of savings associations possessing signifi15 cant financial resources, the appropriate

16 agency (as defined in subsection (c)(3)), in

17 the discretion of the head of the agency

18 and upon a determination by the head of

19 the agency that a transaction under this

20 subsection would lessen the risk to the

21 agency or a deposit insurance fund, may

22 authorize—

23 ‘‘(I) a savings association that is

24 eligible for assistance pursuant to

25 subsection (c) to merge or consolidate
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1 with, or to transfer the association’s

2 assets and liabilities to, any other sav3 ings association or any insured bank,

4 ‘‘(II) any other savings associa5 tion to acquire control of such savings

6 association, or

7 ‘‘(III) any company to acquire

8 control of such savings association or

9 to acquire the assets or assume the li10 abilities of the association.

11 ‘‘(ii) SAFETY AND SOUNDNESS RE12 QUIREMENT.—The appropriate agency may

13 not authorize any transaction under this

14 subsection unless the agency determines

15 that the authorization will not present a

16 substantial risk to the safety or soundness

17 of the savings association to be acquired or

18 any acquiring entity.

19 ‘‘(iii) TERMS OF TRANSACTIONS.—

20 Mergers, consolidations, transfers, and ac21 quisitions under this subsection shall be on

22 such terms as the appropriate agency shall

23 provide.

24 ‘‘(iv) APPROVAL BY APPROPRIATE

25 AGENCY.—Where otherwise required by
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1 law, transactions under this subsection

2 shall be approved by the appropriate Fed3 eral banking agency of every party to the

4 transaction.

5 ‘‘(v) ACQUISITIONS BY SAVINGS ASSO6 CIATIONS.—Any Federal savings associa7 tion which acquires another savings asso8 ciation pursuant to clause (i) may, with

9 the concurrence of the Director of the Of10 fice of Thrift Supervision, hold that sav11 ings association as a subsidiary notwith12 standing the percentage limitations of sec13 tion 5(c)(4)(B) of the Home Owners’ Loan

14 Act.

15 ‘‘(vi) DUAL SERVICE.—Dual service

16 by a management official that would other17 wise be prohibited under the Depository

18 Institution Management Interlocks Act

19 may, with the approval of the appropriate

20 agency, continue for up to 10 years.

21 ‘‘(vii) CONTINUED APPLICABILITY OF

22 CERTAIN STATE RESTRICTIONS.—No provi23 sion of this subsection shall be construed

24 as superseding any State law which re-
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1 stricts or limits the activities of a savings

2 association on behalf of another entity.

3 ‘‘(B) CONSULTATION WITH STATE OFFI4 CIAL.—

5 ‘‘(i) CONSULTATION REQUIRED.—Be6 fore making a determination to take any

7 action under subparagraph (A), the appro8 priate agency shall consult the State bank

9 supervisor of the acquired institution.

10 ‘‘(ii) OPPORTUNITY FOR OBJEC11 TION.—The State bank supervisor shall be

12 given a reasonable opportunity, and in no

13 event less than 48 hours, to object to the

14 approval by the appropriate agency of a

15 transaction under this paragraph.

16 ‘‘(iii) NOTICE BEFORE APPOINT17 MENT.—Notice under clause (ii) may be

18 provided by the Administrator with respect

19 to a savings association before a receiver is

20 appointed for the association, if the Ad21 ministrator determines an appointment of

22 a receiver is pending.

23 ‘‘(iv) WRITTEN NOTICE OF DETER24 MINATION.—If the State bank supervisor

25 objects to a transaction under this para-
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1 graph during the period available for such

2 objection in accordance with clause (ii), the

3 appropriate agency shall provide to the

4 State bank supervisor a written certifi5 cation of the agency’s determination with

6 respect to such objection as soon as prac7 ticable after the determination is made.

8 ‘‘(2) SOLICITATION OF OFFERS.—

9 ‘‘(A) IN GENERAL.—In considering author10 izations under this subsection, the appropriate

11 agency may solicit such offers or proposals as

12 are practicable from any prospective purchasers

13 or merger partners the agency determines, in

14 the head of the agency’s sole discretion, are

15 both qualified and capable of acquiring the as16 sets and liabilities of the savings association.

17 ‘‘(B) MINORITY-CONTROLLED DEPOSITORY

18 INSTITUTIONS.—In the case of a minority-con19 trolled depository institution, the appropriate

20 agency shall seek an offer from other minority21 controlled depository institutions before seeking

22 an offer from other persons.

23 ‘‘(3) TECHNICAL AUTHORITY.—

24 ‘‘(A) DETERMINATIONS ARE DETERMINA25 TIVE.—In determining the cost of offers under
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1 this subsection, the appropriate agency’s cal2 culations and estimations shall be determina3 tive.

4 ‘‘(B) TIME LIMITS.—The appropriate

5 agency may set reasonable time limits on offers.

6 ‘‘(4) BRANCHING PROVISIONS.—

7 ‘‘(A) MAINTENANCE OF EXISTING

8 BRANCHES.—If a merger, consolidation, trans9 fer, or acquisition under this subsection involves

10 a savings association eligible for assistance and

11 a bank or bank holding company, a savings as12 sociation may retain and operate any existing

13 branch or branches or any other existing facili14 ties.

15 ‘‘(B) NEW BRANCHES.—If the savings as16 sociation continues to exist as a separate entity,

17 the association may establish and operate new

18 branches to the same extent as any savings as19 sociation that is not affiliated with a bank hold20 ing company the home office of which is located

21 in the same State.

22 ‘‘(C) RESTRICTIONS.—

23 ‘‘(i) IN GENERAL.—Notwithstanding

24 subparagraph (A), if—
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1 ‘‘(I) the home office of a savings

2 association described in such subpara3 graph is not in the same State in

4 which the home office of a bank sub5 sidiary of the bank holding company

6 is located; and

7 ‘‘(II) such association does not

8 qualify as a domestic building and

9 loan association under section

10 7701(a)(19) of the Internal Revenue

11 Code of 1986, or does not meet the

12 asset composition test imposed by

13 subparagraph (C) of that section on

14 institutions seeking so to qualify,

15 such savings association shall be subject to

16 the conditions upon which a bank may re17 tain, operate, and establish branches in the

18 State in which the savings association is

19 located.

20 ‘‘(ii) TRANSITION PERIOD.—The ap21 propriate agency, for good cause shown,

22 may allow a savings association up to 2

23 years to comply with the requirements of

24 clause (i).
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1 ‘‘(5) ASSISTANCE BEFORE APPOINTMENT OF

2 CONSERVATOR OR RECEIVER.—

3 ‘‘(A) ASSISTANCE PROPOSALS.—The Cor4 poration shall consider proposals by Savings As5 sociation Insurance Fund members for assist6 ance pursuant to subsection (c) before grounds

7 exist for appointment of a conservator or re8 ceiver for such member under the following cir9 cumstances:

10 ‘‘(i) TROUBLED CONDITION CRI11 TERIA.—The Corporation determines—

12 ‘‘(I) that grounds for appoint13 ment of a conservator or receiver exist

14 or likely will exist in the future unless

15 the member’s tangible capital is in16 creased;

17 ‘‘(II) that it is unlikely that the

18 member can achieve positive tangible

19 capital without assistance; and

20 ‘‘(III) that providing assistance

21 pursuant to the member’s proposal

22 would be likely to lessen the risk to

23 the Corporation.

24 ‘‘(ii) OTHER CRITERIA.—The member

25 meets the following criteria:
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1 ‘‘(I) Before enactment of the Fi2 nancial Institutions Reform, Recovery,

3 and Enforcement Act of 1989, the

4 member was solvent under applicable

5 regulatory accounting principles but

6 had negative tangible capital.

7 ‘‘(II) The member’s negative tan8 gible capital position is substantially

9 attributable to its participation in ac10 quisition and merger transactions that

11 were instituted by the Federal Home

12 Loan Bank Board or the Federal Sav13 ings and Loan Insurance Corporation

14 for supervisory reasons.

15 ‘‘(III) The member is a qualified

16 thrift lender (as defined in section

17 10(m) of the Home Owners’ Loan

18 Act) or would be a qualified thrift

19 lender if commercial real estate owned

20 and nonperforming commercial loans

21 acquired in acquisition and merger

22 transactions that were instituted by

23 the Federal Home Loan Bank Board

24 or the Federal Savings and Loan In25 surance Corporation for supervisory
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1 reasons were excluded from the mem2 ber’s total assets.

3 ‘‘(IV) The appropriate Federal

4 banking agency has determined that

5 the member’s management is com6 petent and has complied with applica7 ble laws, rules, and supervisory direc8 tives and orders.

9 ‘‘(V) The member’s management

10 did not engage in insider dealing or

11 speculative practices or other activities

12 that jeopardized the member’s safety

13 and soundness or contributed to its

14 impaired capital position.

15 ‘‘(VI) The member’s offices are

16 located in an economically depressed

17 region.

18 ‘‘(B) CORPORATION CONSIDERATION OF

19 ASSISTANCE PROPOSAL.—If a member meets

20 the requirements of clauses (i) and (ii) of sub21 paragraph (A), the Corporation shall consider

22 providing direct financial assistance.

23 ‘‘(C) ECONOMICALLY DEPRESSED REGION

24 DEFINED.—For purposes of this paragraph, the

25 term ‘economically depressed region’ means any
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1 geographical region which the Corporation de2 termines by regulation to be a region within

3 which real estate values have suffered serious

4 decline due to severe economic conditions, such

5 as a decline in energy or agricultural values or

6 prices.’’.

7 (5) TECHNICAL AND CONFORMING AMEND8 MENT.—Subsection 13 of the Federal Deposit Insur9 ance Act (12 U.S.C. 1823) is amended by striking

10 subsections (d), (e), and (g).

11 (d) REPEAL OF FDIC RECEIVERSHIP AND

12 CONSERVATORSHIP AUTHORITY.—

13 (1) IN GENERAL.—The Federal Deposit Insur14 ance Act (12 U.S.C. 1811 et seq.) is amended—

15 (A) by striking subsections (c), (d), (e), (f),

16 (g), (h), (i), (j), (k), (l), (m), (o), (p), (q), (r),

17 and (s) of section 11; and

18 (B) by striking section 12.

19 (2) LIMITED FDIC AUTHORITY TO ESTABLISH

20 BRIDGE BANKS.—Section 11(n)(1) of the Federal

21 Deposit Insurance Act (12 U.S.C. 1821(n)(1)) is

22 amended—

23 (A) in subparagraph (A)—

24 (i) by striking ‘‘1 or more insured

25 banks are in default, or when’’; and
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1 (ii) by striking the comma after ‘‘may

2 become in default’’; and

3 (B) in subparagraph (B), by striking ‘‘in

4 default or in danger of default’’ each place such

5 term appears and inserting ‘‘in danger of de6 fault’’.

7 (e) TRANSFER OF FUNCTIONS.—Except to the extent

8 otherwise provided by this Act or any amendment made

9 by this Act, all functions performed by the Federal De10 posit Insurance Corporation as a conservator or receiver

11 of an insured depository institution, as of the day before

12 the effective date of this Act, are hereby transferred to

13 the Administrator of the Resolution, Asset Management,

14 and Liquidation Agency.

15 (f) ACCESS TO REPORTS OF CONDITION AND EXAM16 INATION REPORTS.—

17 (1) REPORTS OF CONDITION.—Section 7(a)(2)

18 of the Federal Deposit Insurance Act (12 U.S.C.

19 1817(a)(2)) is amended—

20 (A) in the 1st sentence—

21 (i) by inserting ‘‘and, in the case of a

22 depository institution for which the Admin23 istrator of the Resolution, Asset Manage24 ment, and Liquidation Agency has been

25 appointed as conservator or receiver, the
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1 Administrator’’ after ‘‘The Corporation’’;

2 and

3 (ii) by inserting ‘‘or Administrator’’

4 after ‘‘the Corporation’’; and

5 (B) in the 2d sentence—

6 (i) by inserting ‘‘and the Adminis7 trator’’ after ‘‘The Corporation’’; and

8 (ii) by inserting ‘‘or the Adminis9 trator’’ after ‘‘made to, the Corporation’’.

10 (2) TECHNICAL AND CONFORMING AMENDMENT

11 RELATING TO INFORMATION SHARING.—Section

12 11(t)(2)(A) of the Federal Deposit Insurance Act

13 (12 U.S.C. 1821(t)(2)(A)) is amended by striking

14 clause (ii) and inserting the following new clause:

15 ‘‘(ii) The Resolution, Asset Manage16 ment, and Liquidation Agency.’’.

17 SEC. 103. ABOLITION OF RESOLUTION TRUST CORPORA18 TION.

19 (a) IN GENERAL.—The Thrift Depositor Protection

20 Oversight Board and the Resolution Trust Corporation

21 are hereby abolished.

22 (b) TRANSFER OF FUNCTIONS.—Except to the extent

23 otherwise provided by this Act or any amendment made

24 by this Act, all functions performed by the Resolution

25 Trust Corporation, including any appointment as a con-
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1 servator or receiver, as of the day before the effective date

2 of this Act are hereby transferred to the Administrator

3 of the Resolution, Asset Management, and Liquidation

4 Agency.

5 (c) TRANSFER OF ASSETS AND LIABILITIES.—All as6 sets and liabilities, including any real or personal property,

7 of the Thrift Depositor Protection Oversight Board and

8 the Resolution Trust Corporation shall be transferred to

9 the Administrator of the Resolution, Asset Management,

10 and Liquidation Agency.

11 (d) AVAILABILITY OF RTC FUNDS.—Amounts ap12 propriated under section 21A of the Federal Home Loan

13 Bank Act which remain available for expenditure by the

14 Resolution Trust Corporation on the day before the date

15 of the enactment of this Act shall become available to the

16 Federal Deposit Insurance Corporation as of such date for

17 deposit in the Savings Association Insurance Fund.

18 (e) SAVINGS PROVISION.—

19 (1) EXISTING RIGHTS, DUTIES, AND OBLIGA20 TIONS NOT AFFECTED.—Subsections (a) and (b)

21 shall not affect the validity of any right, duty, or ob22 ligation of the United States, the Thrift Depositor

23 Protection Oversight Board, the Resolution Trust

24 Corporation, or any other person, which—
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1 (A) arises under or pursuant to the Fed2 eral Home Loan Bank Act, the Federal Deposit

3 Insurance Act, or any other Federal law; and

4 (B) existed on the day before the date of

5 the enactment of this Act.

6 (2) CONTINUATION OF SUITS.—No action or

7 other proceeding commenced by or against the

8 Thrift Depositor Protection Oversight Board or the

9 Resolution Trust Corporation, in any capacity, shall

10 abate by reason of the enactment of this Act, except

11 that the Administrator of the Resolution, Asset

12 Management, and Liquidation Agency shall be sub13 stituted for the Chairperson of the Thrift Depositor

14 Protection Oversight Board, the Thrift Depositor

15 Protection Oversight Board, the Resolution Trust

16 Corporation, or the chief executive officer of the

17 Resolution Trust Corporation, as the case may be,

18 as a party to any such action or proceeding.

19 (f) CONTINUATION OF ORDERS, RESOLUTIONS, DE20 TERMINATIONS, AND REGULATIONS.—All orders, resolu21 tions, determinations, and regulations, which—

22 (1) have been issued, made, prescribed, or al23 lowed to become effective by the Thrift Depositor

24 Protection Oversight Board or the Resolution Trust

25 Corporation or by a court of competent jurisdiction,
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1 in the performance of functions which are trans2 ferred by this Act; and

3 (2) are in effect on the date this Act takes ef4 fect (or become effective after such date pursuant to

5 the terms of the order, resolution, determination or

6 regulation, as in effect on such date),

7 shall continue in effect according to the terms of such or8 ders, resolutions, determinations, and regulations and

9 shall be enforceable by or against the Administrator of the

10 Resolution, Asset Management, and Liquidation Agency

11 until modified, terminated, set aside, or superseded in ac12 cordance with applicable law by the Administrator, by any

13 court of competent jurisdiction, or by operation of law.

14 SEC. 104. EMPLOYEE TRANSFERS.

15 (a) ALL RTC-ASSIGNED EMPLOYEES TO BE TRANS16 FERRED.—All Federal Deposit Insurance Corporation em17 ployees assigned to the Resolution Trust Corporation on

18 the day before the effective date of this Act, including liq19 uidation-grade, general-grade, and general-grade term em20 ployees, shall be transferred to the Administrator of the

21 Resolution, Asset Management, and Liquidation Agency

22 (hereafter in this subsection referred to as the ‘‘Adminis23 trator’’) 60 days after the establishment of the Agency.

24 (b) FDIC-ASSIGNED EMPLOYEES TO BE TRANS25 FERRED.—
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1 (1) IN GENERAL.—All Federal Deposit Insur2 ance Corporation employees assigned to the Federal

3 Deposit Insurance Corporation on the day before en4 actment of this Act, including liquidation-grade, gen5 eral-grade, and general-grade term employees, who

6 are performing liquidation, resolution or other func7 tions transferred pursuant to this Act, shall be

8 transferred to the Administrator 60 days after es9 tablishment of the Agency.

10 (2) JOINT IDENTIFICATION.—The Federal De11 posit Insurance Corporation and the Administrator

12 shall jointly identify which Federal Deposit Insur13 ance Corporation-assigned employees are performing

14 liquidation, resolution, or other transferred func15 tions.

16 (c) TDPOB EMPLOYEES TO BE TRANSFERRED.—

17 All employees of the Thrift Depositor Protection Oversight

18 Board on the day before enactment of this Act shall be

19 transferred to the Administrator 60 days after the estab20 lishment of the Agency.

21 (d) RIGHTS OF TRANSFERRED EMPLOYEES.—

22 (1) IN GENERAL.—Except as otherwise pro23 vided in this section, each employee transferred pur24 suant to this section shall be transferred to a sub25 stantially similar position in an office within the
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1 same local commuting area, and shall be guaranteed

2 a position with the same status, tenure (except gen3 eral-grade term employees who shall be transferred

4 without limitation as to term), pay (including any

5 regional or cost-of-living differential), and grade as

6 that held on the day immediately preceding the en7 actment of this Act. Each transferred employee shall

8 receive notice of his position assignment not later

9 than 60 days after transfer into the Administrator.

10 (2) LG EMPLOYEES.—Liquidation-grade em11 ployees assigned to either the Federal Deposit Insur12 ance Corporation or the Resolution Trust Corpora13 tion shall be transferred to an office within the same

14 local commuting area, and shall be guaranteed a po15 sition with the same pay (including any regional or

16 cost-of-living differential), and grade as that held on

17 the day immediately preceding the enactment of this

18 Act, and shall be separated in accordance with the

19 terms of the appointment, unless the appointment is

20 renewed by the Administrator.

21 (3) TDPOB EMPLOYEES.—Employees of the

22 Thrift Depositor Protection Oversight Board shall

23 be transferred to a similar position in an office with24 in the same local commuting area, and shall be

25 guaranteed a position with the same tenure, pay (in-
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1 cluding any regional or cost-of-living differential),

2 and grade as that held on the day immediately pre3 ceding the enactment of this Act. Employees who

4 are in the excepted service whose counterparts from

5 the Federal Deposit Insurance Corporation are in

6 the competitive service shall have their status con7 verted to competitive without any further action.

8 (4) ADDITIONAL EMPLOYEE PROTECTIONS.—

9 Each employee transferred pursuant to this section,

10 other than a liquidation-grade employee, shall not be

11 involuntarily separated or reduced in grade or com12 pensation for 1 year after the date of the transfer,

13 except for cause. A transfer pursuant to this Act

14 shall be deemed a ‘‘transfer of function’’ for the pur15 poses of section 3503 of title 5, United States Code,

16 and a ‘‘major transfer of function’’ for purposes of

17 affording affected employees retirement under sec18 tion 8336(d)(2) or 8414(b)(1)(B) of title 5, United

19 States Code.

20 (e) PERSONNEL AUTHORITY OF THE ADMINIS21 TRATOR.—Before the transfer of employees pursuant to

22 this section, the Administrator—

23 (1) may use employees assigned to the Resolu24 tion Trust Corporation or the Federal Deposit In25 surance Corporation on a temporary basis; and
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1 (2) shall reimburse the appropriate corporation

2 for the agency’s actual expenses.

3 (f) TRANSFER UPON FAILURE TO REAUTHORIZE.—

4 (1) IN GENERAL.—Upon the expiration of the

5 period during which the Administrator may be ap6 pointed as receiver, detailed employees of other Ex7 ecutive agencies (as defined in section 105 of title 5,

8 United States Code) shall be returned to the detail9 ing agency and all other employees shall be identi10 fied for transfer to the closest office of the Federal

11 Deposit Insurance Corporation in accordance with

12 the provisions of paragraphs (1), (2), and (4) of sec13 tion 404 of the Financial Institutions Reform, Re14 covery, and Enforcement Act of 1989.

15 (2) APPLICABILITY OF SECTION 404.—Para16 graphs (1), (2), and (4) of section 404 of the Finan17 cial Institutions Reform, Recovery, and Enforcement

18 Act of 1989 shall apply with respect to each em19 ployee identified for transfer under paragraph (1)

20 (of this subsection) in the same manner such para21 graphs applied with respect to employees identified

22 for transfer under section 403(b) of such Act.
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1 SEC. 105. TRANSFER OF FSLIC RESOLUTION FUND TO

2 AGENCY.

3 (a) IN GENERAL.—Section 11A(a) of the Federal De4 posit Insurance Act (12 U.S.C. 1821a(a)) is amended—

5 (1) in paragraph (1), by striking ‘‘Corporation’’

6 and inserting ‘‘Administrator of the Resolution,

7 Asset Management, and Liquidation Agency (here8 after in this section referred to as the ‘Adminis9 trator’)’’;

10 (2) by striking paragraph (3) and inserting the

11 following new paragraph:

12 ‘‘(3) SEPARATE HOLDING.—Assets and liabil13 ities transferred to the FSLIC Resolution Fund

14 shall be assets and liabilities of the Fund and not

15 the Administrator and shall not be consolidated with

16 the assets and liabilities of the Administrator.’’;

17 (3) by striking paragraph (4) and inserting the

18 following new paragraph:

19 ‘‘(4) RIGHTS, POWERS, AND DUTIES.—Effective

20 on the date of the enactment of the Revitalization of

21 Depository Institution Liquidation Procedures Act of

22 1993, the Administrator shall have all rights, pow23 ers, and duties to carry out the Administrator’s du24 ties with respect to the assets and liabilities of the

25 FSLIC Resolution Fund that the Administrator oth26 erwise has under this Act and sections 21A, 21C,
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1 and 21D of the Federal Home Loan Bank Act.’’;

2 and

3 (4) by striking paragraph (5) and inserting the

4 following new paragraph:

5 ‘‘(5) ADMINISTRATOR AS CONSERVATOR OR RE6 CEIVER.—

7 ‘‘(A) IN GENERAL.—Effective on the date

8 of the enactment of the Revitalization of Depos9 itory Institution Liquidation Procedures Act of

10 1993, the Administrator shall succeed the Cor11 poration as conservator or receiver with respect

12 to any depository institution—

13 ‘‘(i) the accounts of which were in14 sured before August 10, 1989 by the Fed15 eral Savings and Loan Insurance Corpora16 tion; and

17 ‘‘(ii) for which a conservator or re18 ceiver was appointed before January 1,

19 1989.

20 ‘‘(B) RIGHTS, POWERS, AND DUTIES.—

21 When acting as conservator or receiver with re22 spect to any depository institution described in

23 subparagraph (A), the Administrator shall have

24 all rights, powers, and duties that the Adminis25 trator otherwise has as conservator or receiver
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1 under this Act and sections 21A, 21C, and 21D

2 of the Federal Home Loan Bank Act.’’.

3 (b) TECHNICAL AND CONFORMING AMENDMENTS.—

4 Section 11A of the Federal Deposit Insurance Act (12

5 U.S.C. 1821a) is amended—

6 (1) in subsection (b), by striking (4); and

7 (2) in subsection (c)(1), by striking ‘‘Corpora8 tion’’ and inserting ‘‘Administrator’’.

9 TITLE II—FUNDING ISSUES

10 SEC. 201. MAXIMUM OBLIGATION LIMITATION OF ADMINIS11 TRATOR.

12 Section 21A(j)(1) of the Federal Home Loan Bank

13 Act (12 U.S.C. 1441a(j)(1)(B)) is amended by striking

14 ‘‘$50,000,000,000’’ and inserting ‘‘$31,200,000,000’’.

15 SEC. 202. BORROWING BY ADMINISTRATOR LIMITED TO

16 FEDERAL FINANCING BANK.

17 Section 21A(i)(1) of the Federal Home Loan Bank

18 Act (12 U.S.C. 1441a(i)(1)) is amended by adding the fol19 lowing new subparagraph:

20 ‘‘(C) ADDITIONAL BORROWING.—The Ad21 ministrator may borrow only from the Treasury

22 of the United States or from the Federal Fi23 nancing Bank.’’.
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1 TITLE III—REPORTS

2 SEC. 301. STUDY OF PRIVATE SECTOR CONTRACTORS.

3 Section 21A(p) of the Federal Home Loan Bank Act

4 (12 U.S.C. 1441a(p)) is amended by adding at the end

5 the following new paragraph:

6 ‘‘(3) STUDY OF PRIVATE SECTOR CONTRAC7 TORS.—The Administrator shall conduct a detailed

8 review of contractor performance of its major activi9 ties, such as asset valuation, cost test calculation,

10 property management, etc., for the purpose of pre11 paring a report to the Senate Banking, Housing,

12 and Urban Affairs Committee and the House Bank13 ing, Finance and Urban Affairs Committee on the

14 benefits and burdens of contracting out tasks to pri15 vate sector firms as compared to the benefits and

16 burdens of performing the work with its employ17 ees.’’.

18 SEC. 302. ADDITIONAL REPORTS.

19 Section 21A(k)(7) of the Federal Home Loan Bank

20 Act (12 U.S.C. 1441a(k)(7)) is amended to read as fol21 lows:

22 ‘‘(7) QUARTERLY REPORTS.—

23 ‘‘(A) REPORTS REQUIRED.—Not later than

24 May 31, August 31, November 30, and the last

25 day of February of each year, the Adminis-
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1 trator shall submit reports to the Committee on

2 Banking, Finance and Urban Affairs of the

3 House of Representatives and the Committee

4 on Banking, Housing, and Urban Affairs of the

5 Senate.

6 ‘‘(B) ASSETS ON HAND.—

7 ‘‘(i) IN GENERAL.—Each report under

8 this paragraph shall include a report on

9 the assets on hand at the beginning and

10 end of the reporting quarter in receiver11 ships or conservatorships or in institutions

12 under supervisory control of the Adminis13 trator.

14 ‘‘(ii) INFORMATION REQUIRED TO BE

15 INCLUDED.—For each asset, the following

16 information shall be reported:

17 ‘‘(I) Category of asset.

18 ‘‘(II) Location of asset.

19 ‘‘(III) Book value of asset.

20 ‘‘(IV) Fair market value of asset

21 as identified either for purposes of

22 borrowing from the Federal Financing

23 Bank or for purposes of calculating

24 the least-cost resolution method.
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1 ‘‘(V) Information on whether

2 data reported is estimated or con3 firmed from books and records or

4 other reliable sources.

5 ‘‘(VI) Any ancillary matter that

6 may affect the sale of the asset, such

7 as hazardous waste, environmental or

8 historic significance of the asset, in9 complete records, title problems, tax

10 or materialmens’ liens, or adverse eco11 nomic conditions existing in the local

12 area in which the asset is located.

13 ‘‘(C) ASSET SALES.—

14 ‘‘(i) IN GENERAL.—Each report under

15 this paragraph shall include a report on

16 asset sales during the reporting quarter,

17 including the information enumerated in

18 subparagraph (A).

19 ‘‘(ii) INFORMATION REQUIRED TO BE

20 INCLUDED.—For each asset sale, the fol21 lowing information shall be reported:

22 ‘‘(I) The sale price of the asset.

23 ‘‘(II) The terms of any financing.

24 ‘‘(III) Any terms of a sale which

25 obligate the Administrator to future
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1 liability with regard to the asset (in2 cluding such matters as ‘puts’, seller

3 financing, and guaranteed yields).

4 ‘‘(IV) The period of time during

5 which the asset was under the control

6 of the Administrator.

7 ‘‘(V) Any expenditure made in

8 connection with the preservation or

9 the sale of the asset (including fees

10 paid to interim servicers, asset man11 agement and disposition contractors,

12 real estate brokers, securities brokers

13 or underwriters, auctioneers, and in14 surance and professional fees).

15 ‘‘(VI) The calculation of net pro16 ceeds to the Administrator or the sav17 ings association, and the net proceeds

18 as adjusted for contingencies and al19 lowances.

20 ‘‘(VII) The calculation of the net

21 loss (or gain) on each asset, using the

22 value of the asset on the books of a

23 depository institution as of the date of

24 the declaration of conservatorship or
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1 receivership or the imposition of regu2 latory supervision as the basis.

3 ‘‘(VIII) Information on whether

4 the sale was made by auction or a

5 bulk sale, under the affordable hous6 ing program, or through a

7 securitization process.

8 ‘‘(D) FORMATS FOR SUBPARAGRAPHS (B)

9 AND (C).—The information specified in subpara10 graphs (B) and (C) shall be reported in the fol11 lowing formats (and any other that the Admin12 istrator, in the Administrator’s discretion,

13 deems useful):

14 ‘‘(i) By categories of asset and loca15 tion.

16 ‘‘(ii) By categories of asset, location,

17 type of sale, and continuing or contingent

18 liabilities of the Administrator.

19 ‘‘(iii) By categories of asset, location,

20 and type of financing.

21 ‘‘(iv) By categories of asset, holding

22 period, and location.

23 ‘‘(v) By categories of asset, location,

24 and value of other assets of a similar type
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1 in the local market still held or under the

2 control of the Administrator.

3 ‘‘(E) DESCRIPTIVE INFORMATION.—The

4 reports shall contain summary tables, subtotals,

5 and such descriptive information as may be

6 needed to assure the presentation of complete

7 and accurate data.

8 ‘‘(F) DEFINITIONS.—For purposes of this

9 paragraph—

10 ‘‘(i) CATEGORY OF ASSETS.—The

11 term ‘category of assets’ means the follow12 ing:

13 ‘‘(I) Cash.

14 ‘‘(II) Securities.

15 ‘‘(III) Loans.

16 ‘‘(IV) Real estate.

17 ‘‘(V) Other.

18 ‘‘(ii) DIRECTOR.—The term ‘Director’

19 means the Director of the Office of Thrift

20 Supervision.

21 ‘‘(iii) LOAN.—The term ‘loan’

22 means—

23 ‘‘(I) residential mortgages se24 cured by 1- to 4-family dwellings;

25 ‘‘(II) construction loans;
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1 ‘‘(III) land loans;

2 ‘‘(IV) land development loans;

3 ‘‘(V) other mortgage loans;

4 ‘‘(VI) consumer loans; and

5 ‘‘(VII) commercial loans.

6 ‘‘(iv) REAL ESTATE.—The term ‘real

7 estate’ means—

8 ‘‘(I) commercial real estate;

9 ‘‘(II) residential real estate;

10 ‘‘(III) residential single-family

11 real estate;

12 ‘‘(IV) residential multifamily real

13 estate; and

14 ‘‘(V) undeveloped or raw land.

15 ‘‘(v) COMMERCIAL REAL ESTATE.—

16 The term ‘commercial real estate’ means—

17 ‘‘(I) office buildings, subdivided

18 into categories by net rentable or sale19 able square feet;

20 ‘‘(II) shopping centers, sub21 divided by size;

22 ‘‘(III) golf courses, race tracks,

23 sports complexes and stadiums, and

24 other types of recreational facilities;

25 and
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1 ‘‘(IV) hotels and motels sub2 divided by size.

3 ‘‘(vi) LOCATION.—The term ‘location’

4 means—

5 ‘‘(I) street address, lot and block,

6 or other designation sufficient to pre7 cisely locate the asset;

8 ‘‘(II) city and State;

9 ‘‘(III) Standard Metropolitan

10 Statistical Area, or if the asset is not

11 located within such an area, then the

12 county; and

13 ‘‘(IV) jurisdiction of regional,

14 consolidated, and field office of the

15 Administrator.

16 ‘‘(vii) TYPE OF SALE.—The term

17 ‘type of sale’ includes—

18 ‘‘(I) bulk sales;

19 ‘‘(II) the issuance and sale of se20 curities backed by a pool of assets

21 held by the Administrator;

22 ‘‘(III) auction sales;

23 ‘‘(IV) sales under the affordable

24 housing program; and

25 ‘‘(V) seller-financed sales.
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1 ‘‘(viii) the term ‘law firm’—

2 ‘‘(I) means any person who pro3 vides legal services for hire; and

4 ‘‘(II) includes all partners, asso5 ciates, employees, branch offices, and

6 affiliates of such a person.

7 ‘‘(G) DATA ON PRIVATE SECTOR CONTRAC8 TORS.—

9 ‘‘(i) IN GENERAL.—For each contract

10 outstanding at the end of the reporting

11 quarter, the Administrator shall report the

12 following:

13 ‘‘(I) The type of contract.

14 ‘‘(II) The name and principal ad15 dress of the contractor.

16 ‘‘(III) The total dollar value of

17 the contract.

18 ‘‘(IV) The amount of fees or con19 sideration paid to the contractor dur20 ing the quarter and since the incep21 tion of the contract.

22 ‘‘(V) Information on whether a

23 waiver of the conflict of interest rules

24 were granted in connection with the

25 award of the contract and the names
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1 and addresses of persons who were

2 granted any such waivers.

3 ‘‘(VI) A brief description of any

4 ongoing problems with the contract or

5 with the assets or services that are

6 the subject of the contract.

7 ‘‘(VII) The total value of assets

8 delivered to the contractor, sold by the

9 contractor pursuant to the contract,

10 the total receipts received from the

11 contractor, total fees and charges paid

12 to the contractor, the terms of any

13 asset sales, and the value and location

14 of any assets returned to the Adminis15 trator pursuant to an asset sale, if ap16 plicable.

17 ‘‘(ii) SUBCONTRACTOR INFORMA18 TION.—The information required under

19 clause (i) shall be reported for each sub20 contractor of a contractor who performs a

21 substantial part of the value of the con22 tractor’s agreement with the Adminis23 trator.

24 ‘‘(iii) TYPES OF CONTRACTS SPECIFI25 CALLY INCLUDED.—For purposes of this
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1 subparagraph, the term ‘type of contract’

2 includes the following:

3 ‘‘(I) Asset management and dis4 position contracts.

5 ‘‘(II) Interim servicing agree6 ments.

7 ‘‘(III) Collection agreements.

8 ‘‘(IV) Brokerage or underwriting

9 contracts.

10 ‘‘(V) Property management con11 tracts.

12 ‘‘(VI) Professional services con13 tracts.

14 ‘‘(VII) Financial services con15 tracts.

16 ‘‘(H) STATUS OF CLAIMS AND SUITS.—

17 With respect to each claim pending at the end

18 of the quarter against any depository institution

19 for which the Administrator has been appointed

20 conservator or receiver, the Administrator, any

21 managing agent of the Administrator, any en22 tity which has contracted to provide services to

23 the Administrator on account of a failed deposi24 tory institution and each claim pending at such

25 time on behalf of the insured depository institu-
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1 tion, the Administrator shall provide the follow2 ing information, together with any additional

3 information which may be necessary in the dis4 cretion of the Administrator to provide a true

5 and accurate evaluation of the claim:

6 ‘‘(i) The name of the claimant.

7 ‘‘(ii) The amount of any monetary

8 claim and a description of other relief re9 quested.

10 ‘‘(iii) The court or tribunal in which

11 the claim is pending, if any.

12 ‘‘(iv) The law firm retained by the

13 Administrator (if any), the firm’s assess14 ment of the validity of the claim, and the

15 number of other claims or suits being han16 dled by the firm on behalf of the Adminis17 trator or any other depository institution

18 for which the Administrator has been ap19 pointed conservator or receiver.

20 ‘‘(v) With respect to any law firm re21 ferred to in clause (iv), whether a waiver

22 of the conflict of interest rules has been

23 made in connection with the provision of

24 services by the firm.
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1 ‘‘(vi) The aggregate of fees paid to

2 any law firm during the quarter in connec3 tion with the claim.

4 ‘‘(vii) The expected date of resolution

5 of the claim.

6 ‘‘(viii) The condition of any collateral

7 involved with respect to the claim.

8 ‘‘(ix) The nature of any counterclaims

9 or defenses.

10 ‘‘(x) The attorney or supervisor em11 ployed by the Administrator who is respon12 sible for monitoring the claims process on

13 behalf of the Administrator.

14 ‘‘(I) CURRENCY AND ANALYSIS OF INFOR15 MATION.—

16 ‘‘(i) IN GENERAL.—The Administrator

17 shall, within 6 months of the date of the

18 enactment of the Revitalization of Deposi19 tory Institution Liquidation Procedures

20 Act of 1993, provide the information re21 quired in reports under this paragraph, on

22 a real time basis with the capability of

23 sorting, comparing, and summarizing

24 across categories, locations, relationships

25 and association, and status, so that the
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1 progress of the resolution effort can be

2 meaningfully judged.

3 ‘‘(ii) CERTIFICATION.—The Adminis4 trator shall certify each printed report as

5 being true and accurate to the best ability

6 of the Administrator, and all estimates or

7 questionable data shall be prominently

8 marked.

9 ‘‘(J) FEDERAL FINANCING BANK LOAN

10 STATUS.—The report shall contain the following

11 information with respect to loans from the Fed12 eral Financing Bank to the Administrator:

13 ‘‘(i) The total amount of loans out14 standing at the beginning of the quarter.

15 ‘‘(ii) The total amount of loans origi16 nated during the quarter.

17 ‘‘(iii) The total amount of loans re18 paid during the quarter.

19 ‘‘(iv) The total amount of loans out20 standing at the end of the quarter.

21 ‘‘(K) SELLER FINANCING.—The report

22 shall contain information regarding the Admin23 istrator’s use of seller financing to encourage

24 the sales of assets during the quarter, including

25 the following:
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1 ‘‘(i) A total of the amount of funds

2 used for seller financing purposes during

3 the quarter.

4 ‘‘(ii) The number of applications re5 ceived by the Administrator which re6 quested seller financing.

7 ‘‘(iii) A breakdown of the type of as8 sets sold, according to the categories listed

9 in subclauses (I) through (VIII) of sub10 paragraph (B)(vii).

11 ‘‘(iv) Projections of the total amount

12 of seller financing which will be needed

13 during the succeeding 2 quarters.’’.

14 SEC. 303. STUDY OF STANDARDIZED RECORDS.

15 On or before June 1, 1993, the Office of Thrift Su16 pervision shall report to the Senate Committee on Bank17 ing, Housing, and Urban Affairs and the House Commit18 tee on Banking, Finance and Urban Affairs, on the fea19 sibility of requiring a nationwide uniform automated rec20 ordkeeping system for insured depository institutions that

21 would assure the creation, maintenance and accuracy of

22 the books and records of savings and loan institutions in

23 a manner sufficient to assure that if regulatory action

24 must be initiated against such an insured depository insti25 tution, the conservator or receiver shall receive complete
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1 and substantially accurate information about the assets

2 and liabilities of the institution.

3 TITLE IV—REGULATORY

4 MEASURES

5 SEC. 401. 2 PERCENT CAPITAL CUT-OFF.

6 (a) IN GENERAL.—Section 38(h)(3) of the Federal

7 Deposit Insurance Act (12 U.S.C. 1831o(h)(3)) is amend8 ed to read as follows:

9 ‘‘(3) CONSERVATORSHIP OR RECEIVERSHIP RE10 QUIRED.—

11 ‘‘(A) IN GENERAL.—Before the end of the

12 180-day period beginning on the date any in13 sured depository institution becomes critically

14 undercapitalized and notwithstanding any provi15 sion of State law, the appropriate Federal

16 banking agency shall appoint a receiver or, with

17 the approval of the Agency, a conservator for

18 such institution.

19 ‘‘(B) APPOINTMENT OF RECEIVER RE20 QUIRED IF OTHER ACTION FAILS TO RESTORE

21 CAPITAL.—In the case of any institution de22 scribed in subparagraph (A) for which a re23 ceiver was not appointed before the end of the

24 180-day period referred to in such subpara25 graph, the appropriate Federal banking agency
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1 shall, notwithstanding any provision of State

2 law, appoint a receiver for such institution as

3 follows:

4 ‘‘(i) If the capital of such institution

5 does not exceed the critical capital level at

6 the end of the 9-month period beginning

7 on the date action is first taken by the

8 agency under subparagraph (A) with re9 spect to such institution, a receiver shall be

10 appointed by the end of such period.

11 ‘‘(ii) If the capital of such institution

12 exceeds the critical capital level at the end

13 of such 9-month period but fails to exceed

14 such level at the end of any of the first 3

15 months following such period, a receiver

16 shall be appointed as of the end of such

17 month.

18 ‘‘(C) ACQUISITION BY ANOTHER INSURED

19 DEPOSITORY INSTITUTION.—Notwithstanding

20 the requirement under subparagraph (A) to ap21 point a conservator or receiver for an insured

22 depository institution and subject to section 13,

23 the appropriate Federal banking agency may

24 require the insured depository institution to be

25 acquired (as defined in section 13(f)(8)(B)) by
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1 another insured depository institution which of2 fers to acquire such institution if the agency de3 termines, with the concurrence of the Agency

4 that such acquisition would resolve the capital

5 problems of the institution in a manner that is

6 least costly to the affected deposit insurance

7 fund.’’.

8 SEC. 402. PUBLIC AVAILABILITY OF EXAMINATION INFOR9 MATION.

10 (a) AVAILABILITY REQUIRED FOR CERTAIN INSTITU11 TIONS.—

12 (1) IN GENERAL.—Each appropriate banking

13 agency shall make available to the public copies of

14 reports of all examinations of each failed depository

15 institution that received funds, as defined in section

16 406, or of a holding company of such institution,

17 that was performed by that banking agency or its

18 predecessor, during the 5-year period preceding the

19 transfer, failure, or receipt of funds.

20 (2) CONSULTATION.—Each appropriate bank21 ing agency other than the National Credit Union

22 Administration Board shall consult with the Federal

23 Deposit Insurance Corporation or the Agency prior

24 to making such reports available to the public.

25 (b) DELAY OF PUBLICATION.—
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1 (1) THREATS TO SAFETY OR SOUNDNESS OF

2 INSTITUTION.—

3 (A) IN GENERAL.—If the appropriate

4 banking agency makes a determination in writ5 ing that release of an examination report would

6 seriously threaten the safety or soundness of an

7 insured depository institution, such agency may

8 initially delay release of the examination report

9 for a reasonable period of time, not to exceed

10 12 months from the date of the transfer, fail11 ure, or receipt of funds described in section

12 406.

13 (B) EXTENSION OF DELAY.—Any deter14 mination under subparagraph (A) may be re15 newed on an annual basis.

16 (2) ONGOING INVESTIGATIONS.—If the appro17 priate banking agency or the Agency determines in

18 writing that release of a portion of an examination

19 report would hinder an ongoing investigation of al20 leged negligence, or of other activity that would give

21 rise to either administrative or civil proceedings, the

22 portion of the examination report directly pertaining

23 to the alleged negligence or other activity, may be

24 withheld from release during the investigation, until

25 the earliest of—
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1 (A) the date a notice of charges is issued;

2 (B) the date a complaint is filed; or

3 (C) the end of a period not to exceed 24

4 months from the date of the transfer, failure, or

5 receipt of funds described in section 406.

6 (3) DELAY PENDING CRIMINAL INVESTIGA7 TION.—

8 (A) IN GENERAL.—If the appropriate

9 banking agency and the Attorney General of the

10 United States or, in the case of a State-char11 tered depository institution, the attorney gen12 eral of a State, jointly determine that release of

13 a portion of an examination report would

14 hinder an ongoing investigation of alleged

15 criminal activity, the portion of the examination

16 report directly pertaining to the alleged crime

17 may be withheld from release until the earliest

18 of—

19 (i) the termination of such investiga20 tion;

21 (ii) the issuance of an indictment; or

22 (iii) the end of a period not to exceed

23 5 years from the date of the transfer, fail24 ure or receipt of funds described in section

25 406, whichever is earlier.
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1 (B) GAO ACCESS TO INFORMATION.—The

2 Attorney General of the United States or the

3 attorney general of a State shall provide the

4 Comptroller General of the United States with

5 access to information regarding any such crimi6 nal investigation, and shall identify any law en7 forcement agencies or resources assigned to the

8 investigation.

9 (c) EXCLUSION OF OPEN INSTITUTIONS.—

10 (1) OPEN INSTITUTIONS.—This section shall

11 not apply to any open insured depository institution

12 and shall not be construed to require disclosure to

13 the public of any report of examination of any open

14 insured depository institution.

15 (2) AFFILIATED SOLVENT INSTITUTIONS.—In

16 connection with the release of an examination report

17 of a holding company of a failed institution, nothing

18 in this section shall be construed as requiring the re19 lease of any examination report information regard20 ing any solvent depository institution that is also a

21 subsidiary of such holding company.

22 SEC. 403. PROHIBITION OF CONFIDENTIAL SETTLEMENTS.

23 Notwithstanding any other provision of law or any

24 regulation or order, any agreement or settlement of claims

25 between the Agency or the Federal Deposit Insurance Cor-
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1 poration and any other party which relates to an institu2 tion described in section 406 shall be made available to

3 the public.

4 SEC. 404. APPLICABILITY.

5 The requirements of section 402 shall apply—

6 (1) to any insured depository institution that

7 has had its assets or liabilities, or any part thereof,

8 transferred to the FSLIC Resolution Fund or the

9 Agency; or

10 (2) to any Bank Insurance Fund member that

11 has failed and received funds, if during either the

12 fiscal year in which the institution failed or the fis13 cal year in which the institution received funds, as

14 defined in section 406, the Bank Insurance Fund—

15 (A) had outstanding loans, or had other16 wise received funds, from the Department of

17 the Treasury, the Federal Financing Bank, or

18 any Federal Reserve bank; or

19 (B) had a negative fund balance;

20 (3) to any Savings Association Insurance Fund

21 member that has failed and received funds, if during

22 either the fiscal year in which the institution failed

23 or the fiscal year in which the institution received

24 funds, as defined in section 406, the Savings Asso25 ciation Insurance Fund—
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1 (A) had outstanding loans, or had other2 wise received funds, from the Department of

3 the Treasury, the Federal Financing Bank, or

4 any Federal Reserve bank; or

5 (B) had a negative fund balance; and

6 (4) to any insured credit union that has failed

7 and received funds, if during either the fiscal year

8 in which the credit union failed or the fiscal year in

9 which the credit union received funds, as defined in

10 section 406, the National Credit Union Share Insur11 ance Fund—

12 (A) had outstanding loans, or had other13 wise received funds, from the Department of

14 the Treasury, the Federal Financing Bank, or

15 any Federal Reserve Bank; or

16 (B) had a negative fund balance.

17 SEC. 405. REMOVAL OF CUSTOMER INFORMATION FROM

18 EXAMINATION REPORTS.

19 In making available reports of examinations under

20 section 402, each appropriate Federal banking agency

21 shall excise the following information:

22 (1) NONINSTITUTION-AFFILIATED PARTIES.—

23 The name of any person who is not an institution24 affiliated party with respect to an insured depository
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1 institution and any other identifying information

2 with respect to any such person.

3 (2) INSTITUTION-AFFILIATED PARTIES.—The

4 name of any institution-affiliated party and any in5 formation relating to an institution-affiliated party

6 that is not relevant to the relationship between the

7 insured depository institution and the party.

8 (3) OPEN INSTITUTIONS.—The name of any

9 open insured depository institution and any other

10 identifying information with respect to any such in11 stitution.

12 (4) EXAMINERS.—Any reference to any exam13 iner or other banking agency employee involved in

14 the examination of the insured depository institu15 tion.

16 (5) WHISTLEBLOWERS.—Any reference to any

17 person who has provided information in confidence

18 to a banking agency which may be utilized to pursue

19 a civil or criminal action.

20 SEC. 406. DEFINITIONS.

21 For purposes of this section—

22 (1) an insured depository institution has

23 ‘‘failed’’ if the Federal Deposit Insurance Corpora24 tion, Agency, or National Credit Union Administra25 tion Board—
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1 (A) has been appointed as receiver or liq2 uidating agent for such institution; or

3 (B) has exercised the power to provide as4 sistance under section 13(c)(2) of the Federal

5 Deposit Insurance Act or the analogous powers

6 under section 21A of the Federal Home Loan

7 Bank Act;

8 (2) an insured depository institution has ‘‘re9 ceived funds’’ if the institution, any company that

10 controls such institution, or any acquiring institution

11 receives cash or other valuable consideration from

12 the National Credit Union Administration Board,

13 the Agency, the Federal Deposit Insurance Corpora14 tion, or any Federal Reserve bank that lends for

15 more than 30 days while the insured depository in16 stitution is critically undercapitalized within the 1-

17 year period before the failure of the insured deposi18 tory institution whether in the form of a loan, a pay19 ment to depositors or other creditors, the assump20 tion of liabilities, or otherwise;

21 (3) the term ‘‘insured depository institution’’

22 has the same meaning as in section 3 of the Federal

23 Deposit Insurance Act, except that such term in24 cludes an insured credit union, as defined in section

25 101 of the Federal Credit Union Act; and
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1 (4) the term ‘‘appropriate banking agency’’

2 means the Federal Deposit Insurance Corporation,

3 the Board of Governors of the Federal Reserve Sys4 tem, the Comptroller of the Currency, the Office of

5 Thrift Supervision, or the National Credit Union

6 Administration Board, and, in the case of a State7 chartered depository institution, the appropriate

8 State depository institution regulatory agency.

9 SEC. 407. ADDITIONAL DISCLOSURES BY FDIC, NCUA, AND

10 AGENCY.

11 (a) BORROWERS.—Not later than 6 months after

12 being appointed receiver or liquidating agent for any failed

13 institution that received funds, as defined in section 406,

14 the Federal Deposit Insurance Corporation, the National

15 Credit Union Administration, or the Agency, as appro16 priate, shall make available to the public the name and

17 loan balance of any borrower who—

18 (1) was an executive officer, director, or prin19 cipal shareholder of the institution, or a related in20 terest of any such person, as such terms are defined

21 in section 22(h) of the Federal Reserve Act; and

22 (2) at the time that the receiver was appointed,

23 was more than 90 days delinquent on a loan.

24 (b) TRANSACTIONS.—Not later than 12 months after

25 being appointed receiver or liquidating agent for any failed
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1 institution that received funds, as defined in section 406,

2 the Federal Deposit Insurance Corporation, the National

3 Credit Union Administration Board, or the Agency shall

4 make available, and update periodically thereafter, a list

5 of pending and settled lawsuits brought by such agency

6 involving transactions (other than loans described in sub7 section (a)) that caused a material loss to such institution

8 or to the deposit insurance fund.

9 SEC. 408. GAO AUDITS.

10 (a) IN GENERAL.—The Comptroller General of the

11 United States shall selectively audit examination reports

12 made available to the public by the appropriate Federal

13 banking agencies under section 402, and disclosures made

14 by the Federal Deposit Insurance Corporation, National

15 Credit Union Administration, and Agency under section

16 407, to assess compliance with the requirements of those

17 sections.

18 (b) NATURE, SCOPE, TERMS, AND CONDITIONS.—

19 The Comptroller General shall determine the nature,

20 scope, terms, and conditions of audits conducted under

21 this section.
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1 TITLE V—COURT-ORDERED RES2 TITUTION IN CASES OF FI3 NANCIAL INSTITUTION

4 FRAUD AND PRIVATE AC5 TIONS

6 SEC. 501. IMPROVEMENTS IN COLLECTION OF COURT-OR7 DERED RESTITUTION IN CASES OF FINAN8 CIAL INSTITUTION FRAUD.

9 (a) IN GENERAL.—Section 8 of the Federal Deposit

10 Insurance Act (12 U.S.C. 1818) is amended by adding at

11 the end the following new subsection:

12 ‘‘(w) SPECIAL RULES RELATING TO BANKING LAW

13 CONVICTIONS.—

14 ‘‘(1) PREJUDGMENT ATTACHMENT OF PRO15 CEEDS OF BANKING LAW VIOLATION.—In the case of

16 any property obtained by any person as a result of

17 any act which the Attorney General has probable

18 cause to believe is a banking law violation or any

19 property traceable to any such act, such property

20 may be treated as property obtained from a banking

21 law violation, or as property traceable to such viola22 tion, for purposes of section 1345(a)(2) of title 18,

23 United States Code.

24 ‘‘(2) RESTITUTION DUE UPON ISSUANCE OF

25 ORDER.—Notwithstanding paragraph (1) of section
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1 3663(f), in the case of an order of restitution issued

2 in connection with a conviction for a banking law

3 violation, restitution shall be due in full as of the

4 date of the order.

5 ‘‘(3) RESTITUTION ORDER ENFORCEABLE

6 UNTIL PAID.—Notwithstanding any provision of sec7 tion 3663 of title 18, United States Code, any res8 titution order issued under such section in connec9 tion with a conviction for a banking law violation

10 shall remain enforceable under such title until the

11 total amount of restitution has been paid.

12 ‘‘(4) ENFORCEMENT OF RESTITUTION ORDER

13 AS A LIEN.—In addition to the enforcement author14 ity under subsection (h) of section 3663 of title 18,

15 United States Code, a restitution order issued under

16 such section in connection with a banking law viola17 tion—

18 ‘‘(A) shall constitute a lien against all of

19 the defendant’s property; and

20 ‘‘(B) may be recorded as a lien in any ap21 propriate Federal or State office for the record22 ing of liens against real or personal property.

23 ‘‘(5) APPOINTMENT OF TEMPORARY RE24 CEIVER.—In the case of any action to enforce a res25 titution order issued under section 3663 of title 18,
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1 United States Code, in connection with a banking

2 law violation, the court—

3 ‘‘(A) on the motion of—

4 ‘‘(i) a recipient of restitution under

5 the order; or

6 ‘‘(ii) any person authorized to act on

7 behalf of any such recipient; or

8 ‘‘(B) on the court’s own motion,

9 may appoint a temporary receiver to administer the

10 defendant’s assets to ensure payment of restitution

11 pursuant to the order to the maximum possible ex12 tent.

13 ‘‘(6) DISCLOSURE OF FINANCIAL INFORMATION

14 IN PRESENTENCE REPORT TO RECIPIENTS OF RES15 TITUTION.—In any case in which a restitution order

16 has been issued under section 3663 of title 18, Unit17 ed States Code, in connection with a banking law

18 violation, any financial information relating to the

19 defendant which is contained in the report on the

20 presentence investigation conducted pursuant to

21 Rule 32(c) of the Federal Rules of Criminal Proce22 dure with respect to such violation shall be made

23 available by the court after the sentencing of the de24 fendant to any recipient of restitution under the

25 order and any person authorized to act on behalf of
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1 any such recipient, including any person who files an

2 action on behalf of the Agency under subsection (x).

3 ‘‘(7) PAYMENT OF RESTITUTION DIRECTLY TO

4 AGENCY.—

5 ‘‘(A) IN GENERAL.—Notwithstanding any

6 provision of section 3663 of title 18, United

7 States Code, or the terms of any restitution

8 order issued under such section in connection

9 with a banking law violation before the date of

10 the enactment of the Revitalization of Deposi11 tory-Institution Liquidation Procedures Act of

12 1993, that portion of the amount of restitution

13 under any order under such section which ac14 crues to the benefit of the Agency in accordance

15 with such order, including any amount accruing

16 to the Agency in the Agency’s capacity as con17 servator or receiver for an insured depository

18 institution, shall be paid directly to the Agency

19 by the defendant subject to the restitution

20 order.

21 ‘‘(B) NOTICE BY AGENCY.—If the Agency

22 succeeds to the interest of any person receiving

23 restitution under section 3663 of title 18, Unit24 ed States Code, in connection with a banking

25 law violation, the Agency shall promptly notify
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1 the defendant who is subject to the restitution

2 order of the amount which shall be paid directly

3 to the Agency and the procedure for making

4 such payment.

5 ‘‘(C) PROCEDURES.—The Agency the At6 torney General, and the Director of the Admin7 istrative Office of the United States Courts

8 shall establish procedures for providing notice

9 to any appropriate officer or employee of the

10 United States, any appropriate court of the

11 United States, or any other interested party to

12 any restitution order issued under section 3663

13 of title 18, United States Code, in connection

14 with a banking law violation that the Agency

15 has succeeded to the interest of any person re16 ceiving restitution under such order.

17 ‘‘(D) APPLICABILITY TO RTC AND NCUA.—

18 If any portion of the amount of any restitution

19 ordered under section 3663 of title 18, United

20 States Code, accrues to the benefit of the Agen21 cy or the National Credit Union Administra22 tion, subparagraphs (A), (B), and (C) shall be

23 applied by substituting ‘‘Resolution, Asset Man24 agement and Liquidation Agency’’ or ‘National

25 Credit Union Administration’, as the case may
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1 be, for ‘Corporation’ each place such term ap2 pears.

3 ‘‘(E) SCOPE OF APPLICATION.—This para4 graph shall apply with respect to restitution

5 payable under any restitution order issued

6 under section 3663 of title 18, United States

7 Code, without regard to the date of issue of the

8 order.

9 ‘‘(8) CONSIDERATION OF DEFENDANT’S ABIL10 ITY TO PAY PROHIBITED.—In determining the

11 amount of any restitution ordered under section

12 3663 of title 18, United States Code, in connection

13 with a banking law violation or making any deter14 mination under section 3663(g) of such title with re15 spect to any defendant who is subject to such order,

16 the court shall not take into account the ability of

17 the defendant to pay.

18 ‘‘(9) NOTICE TO RECIPIENT OF RESTITU19 TION.—If the full amount of restitution required to

20 be paid by a defendant pursuant to a restitution

21 order issued under section 3663 of title 18, United

22 States Code, in connection with a banking law viola23 tion has not been paid before the end of any period

24 of supervised release of such defendant pursuant to

25 the sentence of the court, the United States Parole
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1 Commission or the probation officer of a district

2 court of the United States, as the case may be, shall

3 provide notice of the end of such period to each re4 cipient of restitution under such order who has not

5 been fully repaid.

6 ‘‘(10) BANKING LAW VIOLATION DEFINED.—

7 For purposes of this subsection and subsection (x),

8 the term ‘banking law violation’ has the meaning

9 given to such term in section 3322(d) of title 18,

10 United States Code.’’.

11 (b) EFFECTIVE DATE.—The amendment made by

12 subsection (a) shall take effect at the end of the 90-day

13 period beginning on the date of the enactment of this Act

14 and shall apply with respect to any banking law violation

15 or restitution order issued under section 3663 of title 18,

16 United States Code, in connection with any such violation

17 without regard to the date on which the violation was com18 mitted or the date of issue of the order.

19 SEC. 502. PRIVATE ACTIONS TO COLLECT RESTITUTION.

20 (a) IN GENERAL.—Section 8 of the Federal Deposit

21 Insurance Act (12 U.S.C. 1818) is amended by inserting

22 after subsection (w) (as added by section 504 of this title)

23 the following new subsection:
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1 ‘‘(x) PRIVATE ACTIONS TO COLLECT RESTITUTION

2 ORDERED IN CONNECTION WITH BANKING LAW VIOLA3 TIONS.—

4 ‘‘(1) IN GENERAL.—If any portion of the

5 amount of restitution ordered under section 3663 of

6 title 18, United States Code, for which the Agency

7 is the recipient, including any amount accruing to

8 the Agency in the Agency’s capacity as conservator

9 or receiver for any insured depository institution

10 which is a recipient under the order, remains out11 standing at the end of the 6-month period beginning

12 on the later of—

13 ‘‘(A) the date the restitution order is is14 sued; or

15 ‘‘(B) in the case of any such depository in16 stitution, the date of the appointment of the

17 Agency as conservator or receiver for the depos18 itory institution.

19 any person may file an action in a Federal or State

20 court of competent jurisdiction to recover, on behalf

21 of the Agency any asset of, or traceable to, any per22 son liable for such portion of the restitution in satis23 faction of the order.

24 ‘‘(2) SHARE OF ASSETS.—Subject to paragraph

25 (9), if any asset is recovered on behalf of the Agency
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1 in an action under paragraph (1), the person who

2 brought the action shall be entitled to receive from

3 the Agency an amount equal to the sum of—

4 ‘‘(A) 30 percent of that portion of the re5 covery value of all the assets recovered pursu6 ant to such action which does not exceed

7 $1,000,000;

8 ‘‘(B) 20 percent of that portion of the re9 covery value of all the assets recovered pursu10 ant to such action which exceeds $1,000,000

11 and does not exceed $5,000,000;

12 ‘‘(C) 10 percent of that portion of the re13 covery value of all the assets recovered pursu14 ant to such action which exceeds $5,000,000

15 and does not exceed $10,000,000; and

16 ‘‘(D) 5 percent of that portion of the re17 covery value of all the assets recovered pursu18 ant to such action which exceeds $10,000,000.

19 ‘‘(3) DOUBLE AWARDS PROHIBITED.—No per20 son who receives, pursuant to paragraph (2), any

21 share of an asset recovered in an action under para22 graph (1) shall be entitled to receive or retain any

23 reward under section 34 of the Federal Deposit In24 surance Act or section 3059A of title 18, United
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1 States Code, for providing any information relating

2 to such asset.

3 ‘‘(4) PROTECTION OF MOVING PARTY.—The

4 provisions of section 3059A(e) of title 18, United

5 States Code, shall apply with respect to any person

6 who brings an action under paragraph (1) in the

7 same manner as such provisions apply to any person

8 described in such section.

9 ‘‘(5) NOTICE TO AGENCY.—Any person who

10 brings an action under this subsection shall prompt11 ly notify the Agency of—

12 ‘‘(A) the filing of any action under this

13 section;

14 ‘‘(B) any final judgment or order with re15 gard to such action; and

16 ‘‘(C) any settlement discussions among the

17 parties to such action.

18 ‘‘(6) SETTLEMENT WITHOUT AGENCY CONSENT

19 PROHIBITED.—No settlement agreement with regard

20 to any action under paragraph (1) may be entered

21 into or agreed to by any person who brought the ac22 tion on behalf of the Agency without the prior writ23 ten consent of the Agency.

24 ‘‘(7) COUNTERCLAIMS.—If a counterclaim is

25 filed in any action under paragraph (1), no action
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1 may be taken in connection with such action until

2 the counterclaim has been served on any appropriate

3 party, including the Attorney General or the Agency.

4 ‘‘(8) AWARD OF COST AND ATTORNEY FEES TO

5 PREVAILING PLAINTIFF.—In addition to any amount

6 received under paragraph (2) by any person who

7 brings an action on behalf of the Agency under

8 paragraph (1) and prevails, the court, in the court’s

9 discretion, may allow the person reasonable attor10 neys’ fees and other costs of such person in connec11 tion with such action.

12 ‘‘(9) INELIGIBILITY OF CERTAIN PERSONS FOR

13 SHARE OF ASSETS.—Paragraph (2) shall not apply

14 with respect to the following persons in the case of

15 any action brought by any such person under para16 graph (1) in connection with a restitution order re17 ferred to in such paragraph:

18 ‘‘(A) Any current or former officer or em19 ployee of the United States or any State who

20 directly or indirectly obtained, in whole or in

21 part, any information with respect to any asset

22 which is the subject of the action while acting

23 within the course of such officer’s or employee’s

24 government employment.
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1 ‘‘(B) Any person who participated in any

2 banking law violation which resulted in the issu3 ance of the restitution order.

4 ‘‘(C) Any institution-affiliated party who

5 withheld any information which such person

6 had a fiduciary duty to disclose relating to any

7 banking law violation that resulted in the issu8 ance of the restitution order.

9 ‘‘(D) Any member of the immediate family

10 of a defendant who is subject to the restitution

11 order.

12 ‘‘(10) EXCEPTION FOR CERTAIN ASSETS.—This

13 subsection shall not apply with respect to any asset

14 referred to in paragraph (1) in which the Agency

15 has—

16 ‘‘(A) perfected a security interest before

17 the date an action is filed under paragraph (1);

18 or

19 ‘‘(B) otherwise asserted a legal interest as

20 a matter of public record before such date.

21 ‘‘(11) AVOIDABLE TRANSFERS.—Any person

22 who brings an action under paragraph (1) with re23 spect to any asset may exercise any authority of the

24 Agency under section 11(d)(17) to avoid a transfer
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1 and recover the value of the asset, subject to the

2 provisions of such section.

3 ‘‘(12) APPLICABILITY TO AGENCY AND NCUA.—

4 If any portion of the amount of any restitution or5 dered under section 3663 of title 18, United States

6 Code, accrues to the benefit of the Agency or the

7 National Credit Union Administration, this sub8 section shall be applied by substituting ‘Resolution,

9 Asset Management and Liquidation Agency’ or ‘Na10 tional Credit Union Administration’, as the case may

11 be, for ‘Corporation’ each place such term appears,

12 except that section 207(b)(16) of the Federal Credit

13 Union Act shall apply with respect to the authority

14 of any person under paragraph (11) to avoid a

15 transfer of an asset and recover the value of the

16 asset on behalf of the National Credit Union Admin17 istration.’’.

18 (b) SCOPE OF APPLICATION.—The amendment made

19 by subsection (a) shall apply to any restitution order is20 sued under section 3663 of title 18, United States Code,

21 in connection with a banking law violation which is in ef22 fect, or becomes effective, on or after the date of the enact23 ment of this Act.

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