131 
Financial Services of the House of Representa-
tives. 
‘‘(C) AVAILABILITY OF REPORTS.—Any re-
port prepared under subparagraph (B) shall be 
made available by the Agency upon request to 
any shareholder of an enterprise or any member 
of the public. 
‘‘(D) RECORDKEEPING
REQUIREMENT.— 
After the end of the 6-year period beginning on 
the date that the conservatorship or receiver-
ship is terminated by the Director, the Agency 
may destroy any records of such enterprise 
which the Agency, in the discretion of the Agen-
cy, determines to be unnecessary unless di-
rected not to do so by a court of competent ju-
risdiction or governmental agency, or prohibited 
by law. 
‘‘(15) FRAUDULENT TRANSFERS.— 
‘‘(A) IN GENERAL.—The Agency, as con-
servator or receiver, may avoid a transfer of 
any interest of an enterprise-affiliated party, or 
any person who the conservator or receiver de-
termines is a debtor of the enterprise, in prop-
erty, or any obligation incurred by such party 
or person, that was made within 5 years of the
132 
date on which the Agency was appointed con-
servator or receiver, if such party or person vol-
untarily or involuntarily made such transfer or 
incurred such liability with the intent to hinder, 
delay, or defraud the enterprise, the Agency, 
the conservator, or receiver. 
‘‘(B) RIGHT OF RECOVERY.—To the extent 
a transfer is avoided under subparagraph (A), 
the conservator or receiver may recover, for the 
benefit of the enterprise, the property trans-
ferred, or, if a court so orders, the value of 
such property (at the time of such transfer) 
from— 
‘‘(i) the initial transferee of such 
transfer or the enterprise-affiliated party 
or person for whose benefit such transfer 
was made; or 
‘‘(ii) any immediate or mediate trans-
feree of any such initial transferee. 
‘‘(C) RIGHTS OF TRANSFEREE OR OBLI-
GEE.—The conservator or receiver may not re-
cover under subparagraph (B) from— 
‘‘(i) any transferee that takes for 
value, including satisfaction or securing of
133 
a present or antecedent debt, in good faith; 
or 
‘‘(ii) any immediate or mediate good 
faith transferee of such transferee. 
‘‘(D) RIGHTS UNDER THIS PARAGRAPH.— 
The rights under this paragraph of the conser-
vator or receiver described under subparagraph 
(A) shall be superior to any rights of a trustee 
or any other party (other than any party which 
is a Federal agency) under title 11, United 
States Code. 
‘‘(16) ATTACHMENT OF ASSETS AND OTHER IN-
JUNCTIVE RELIEF.—Subject to paragraph (17), any 
court of competent jurisdiction may, at the request 
of the conservator or receiver, issue an order in ac-
cordance with Rule 65 of the Federal Rules of Civil 
Procedure, including an order placing the assets of 
any person designated by the Agency or such conser-
vator under the control of the court, and appointing 
a trustee to hold such assets. 
‘‘(17) STANDARDS OF PROOF.—Rule 65 of the 
Federal Rules of Civil Procedure shall apply with re-
spect to any proceeding under paragraph (16) with-
out regard to the requirement of such rule that the
134 
applicant show that the injury, loss, or damage is ir-
reparable and immediate. 
‘‘(18) TREATMENT OF CLAIMS ARISING FROM 
BREACH
OF
CONTRACTS
EXECUTED
BY
THE
RE-
CEIVER OR CONSERVATOR.— 
‘‘(A) IN GENERAL.—Notwithstanding any 
other provision of this subsection, any final and 
unappealable judgment for monetary damages 
entered against a receiver or conservator for the 
breach of an agreement executed or approved in 
writing by such receiver or conservator after the 
date of its appointment, shall be paid as an ad-
ministrative expense of the receiver or conser-
vator. 
‘‘(B) NO LIMITATION OF POWER.—Nothing 
in this paragraph shall be construed to limit the 
power of a receiver or conservator to exercise 
any rights under contract or law, including to 
terminate, breach, cancel, or otherwise dis-
continue such agreement. 
‘‘(19) GENERAL EXCEPTIONS.— 
‘‘(A) LIMITATIONS.—The rights of a con-
servator or receiver appointed under this section 
shall be subject to the limitations on the powers 
of a receiver under sections 402 through 407 of
135 
the Federal Deposit Insurance Corporation Im-
provement Act of 1991 (12 U.S.C. 4402 
through 4407). 
‘‘(B) MORTGAGES HELD IN TRUST.— 
‘‘(i) IN
GENERAL.—Any mortgage, 
pool of mortgages, or interest in a pool of 
mortgages, held in trust, custodial, or 
agency capacity by an enterprise for the 
benefit of persons other than the enterprise 
shall not be available to satisfy the claims 
of creditors generally. 
‘‘(ii) HOLDING OF MORTGAGES.—Any 
mortgage, pool of mortgages, or interest in 
a pool of mortgages, described under 
clause (i) shall be held by the conservator 
or receiver appointed under this section for 
the beneficial owners of such mortgage, 
pool of mortgages, or interest in a pool of 
mortgages in accordance with the terms of 
the agreement creating such trust, custo-
dial, or other agency arrangement. 
‘‘(iii) LIABILITY OF RECEIVER.—The 
liability of a receiver appointed under this 
section for damages shall, in the case of 
any contingent or unliquidated claim relat-
136 
ing to the mortgages held in trust, be esti-
mated in accordance set forth in the regu-
lations of the Director. 
‘‘(c) PRIORITY
OF EXPENSES
AND UNSECURED 
CLAIMS.— 
‘‘(1) IN GENERAL.—Unsecured claims against 
an enterprise, or a receiver, that are proven to the 
satisfaction of the receiver shall have priority in the 
following order: 
‘‘(A) Administrative expenses of the re-
ceiver. 
‘‘(B) Any other general or senior liability 
of the enterprise (which is not a liability de-
scribed under subparagraph (C) or (D). 
‘‘(C) Any obligation subordinated to gen-
eral creditors (which is not an obligation de-
scribed under subparagraph (D)). 
‘‘(D) Any obligation to shareholders or 
members arising as a result of their status as 
shareholder or members. 
‘‘(2) CREDITORS
SIMILARLY
SITUATED.—All 
creditors that are similarly situated under paragraph 
(1) shall be treated in a similar manner. 
‘‘(3) DEFINITION.—The term ‘administrative 
expenses of the receiver’ shall include the actual,
137 
necessary costs and expenses incurred by the re-
ceiver in preserving the assets of a failed enterprise 
or liquidating or otherwise resolving the affairs of 
the failed enterprise. Such expenses shall include ob-
ligations that are incurred by the receiver after ap-
pointment as receiver that the Director determines 
are necessary and appropriate to facilitate the 
smooth and orderly liquidation or other resolution of 
the enterprise. 
‘‘(d) PROVISIONS RELATING
TO CONTRACTS EN-
TERED INTO BEFORE APPOINTMENT OF CONSERVATOR 
OR RECEIVER.— 
‘‘(1) AUTHORITY TO REPUDIATE CONTRACTS.— 
In addition to any other rights a conservator or re-
ceiver may have, the conservator or receiver for any 
enterprise may disaffirm or repudiate any contract 
or lease— 
‘‘(A) to which such enterprise is a party; 
‘‘(B) the performance of which the conser-
vator or receiver, in its sole discretion, deter-
mines to be burdensome; and 
‘‘(C) the disaffirmance or repudiation of 
which the conservator or receiver determines, in 
its sole discretion, will promote the orderly ad-
ministration of the affairs of the enterprise.
138 
‘‘(2) TIMING
OF
REPUDIATION.—The conser-
vator or receiver shall determine whether or not to 
exercise the rights of repudiation under this sub-
section within a reasonable period following such ap-
pointment. 
‘‘(3) CLAIMS
FOR
DAMAGES
FOR
REPUDI-
ATION.— 
‘‘(A) IN GENERAL.—Except as otherwise 
provided under subparagraph (C) and para-
graphs (4), (5), and (6), the liability of the con-
servator or receiver for the disaffirmance or re-
pudiation of any contract pursuant to para-
graph (1) shall be— 
‘‘(i) limited to actual direct compen-
satory damages; and 
‘‘(ii) determined as of— 
‘‘(I) the date of the appointment 
of the conservator or receiver; or 
‘‘(II) in the case of any contract 
or agreement referred to in paragraph 
(8), the date of the disaffirmance or 
repudiation of such contract or agree-
ment. 
‘‘(B) NO
LIABILITY
FOR
OTHER
DAM-
AGES.—For purposes of subparagraph (A), the
139 
term ‘actual direct compensatory damages’ shall 
not include— 
‘‘(i) punitive or exemplary damages; 
‘‘(ii) damages for lost profits or op-
portunity; or 
‘‘(iii) damages for pain and suffering. 
‘‘(C) MEASURE OF DAMAGES FOR REPUDI-
ATION OF FINANCIAL CONTRACTS.—In the case 
of any qualified financial contract or agreement 
to which paragraph (8) applies, compensatory 
damages shall be— 
‘‘(i) deemed to include normal and 
reasonable costs of cover or other reason-
able measures of damages utilized in the 
industries for such contract and agreement 
claims; and 
‘‘(ii) paid in accordance with this sub-
section and subsection (e), except as other-
wise specifically provided in this section. 
‘‘(4) LEASES UNDER WHICH THE ENTERPRISE 
IS THE LESSEE.— 
‘‘(A) IN GENERAL.—If the conservator or 
receiver disaffirms or repudiates a lease under 
which the enterprise was the lessee, the conser-
vator or receiver shall not be liable for any
140 
damages (other than damages determined 
under subparagraph (B)) for the disaffirmance 
or repudiation of such lease. 
‘‘(B) 
PAYMENTS
OF
RENT.—Notwith-
standing subparagraph (A), the lessor under a 
lease to which that subparagraph applies 
shall— 
‘‘(i) be entitled to the contractual rent 
accruing before the later of the date— 
‘‘(I) the notice of disaffirmance 
or repudiation is mailed; or 
‘‘(II) the disaffirmance or repudi-
ation becomes effective, unless the les-
sor is in default or breach of the 
terms of the lease; 
‘‘(ii) have no claim for damages under 
any acceleration clause or other penalty 
provision in the lease; and 
‘‘(iii) have a claim for any unpaid 
rent, subject to all appropriate offsets and 
defenses, due as of the date of the appoint-
ment, which shall be paid in accordance 
with this subsection and subsection (e). 
‘‘(5) LEASES UNDER WHICH THE ENTERPRISE 
IS THE LESSOR.—