141 
‘‘(A) IN GENERAL.—If the conservator or 
receiver repudiates an unexpired written lease 
of real property of the enterprise under which 
the enterprise is the lessor and the lessee is not, 
as of the date of such repudiation, in default, 
the lessee under such lease may either— 
‘‘(i) treat the lease as terminated by 
such repudiation; or 
‘‘(ii) remain in possession of the lease-
hold interest for the balance of the term of 
the lease, unless the lessee defaults under 
the terms of the lease after the date of 
such repudiation. 
‘‘(B) PROVISIONS APPLICABLE TO LESSEE 
REMAINING
IN
POSSESSION.—If any lessee 
under a lease described under subparagraph (A) 
remains in possession of a leasehold interest 
under clause (ii) of such subparagraph— 
‘‘(i) the lessee— 
‘‘(I) shall continue to pay the 
contractual rent pursuant to the 
terms of the lease after the date of 
the repudiation of such lease; and 
‘‘(II) may offset against any rent 
payment which accrues after the date
142 
of the repudiation of the lease, and 
any damages which accrue after such 
date due to the nonperformance of 
any obligation of the enterprise under 
the lease after such date; and 
‘‘(ii) the conservator or receiver shall 
not be liable to the lessee for any damages 
arising after such date as a result of the 
repudiation other than the amount of any 
offset allowed under clause (i)(II). 
‘‘(6) CONTRACTS
FOR
THE
SALE
OF
REAL 
PROPERTY.— 
‘‘(A) IN GENERAL.—If the conservator or 
receiver repudiates any contract for the sale of 
real property and the purchaser of such real 
property under such contract is in possession, 
and is not, as of the date of such repudiation, 
in default, such purchaser may either— 
‘‘(i) treat the contract as terminated 
by such repudiation; or 
‘‘(ii) remain in possession of such real 
property. 
‘‘(B) PROVISIONS
APPLICABLE
TO
PUR-
CHASER
REMAINING
IN
POSSESSION.—If any 
purchaser of real property under any contract
143 
described under subparagraph (A) remains in 
possession of such property under clause (ii) of 
such subparagraph— 
‘‘(i) the purchaser— 
‘‘(I) shall continue to make all 
payments due under the contract after 
the date of the repudiation of the con-
tract; and 
‘‘(II) may offset against any such 
payments any damages which accrue 
after such date due to the non-
performance (after such date) of any 
obligation of the enterprise under the 
contract; and 
‘‘(ii) 
the 
conservator 
or 
receiver 
shall— 
‘‘(I) not be liable to the pur-
chaser for any damages arising after 
such date as a result of the repudi-
ation other than the amount of any 
offset allowed under clause (i)(II); 
‘‘(II) deliver title to the pur-
chaser in accordance with the provi-
sions of the contract; and
144 
‘‘(III) have no obligation under 
the contract other than the perform-
ance required under subclause (II). 
‘‘(C) ASSIGNMENT AND SALE ALLOWED.— 
‘‘(i) IN
GENERAL.—No provision of 
this paragraph shall be construed as lim-
iting the right of the conservator or re-
ceiver to assign the contract described 
under subparagraph (A), and sell the prop-
erty subject to the contract and the provi-
sions of this paragraph. 
‘‘(ii) NO
LIABILITY
AFTER
ASSIGN-
MENT AND SALE.—If an assignment and 
sale described under clause (i) is con-
summated, the conservator or receiver 
shall have no further liability under the 
contract described under subparagraph 
(A), or with respect to the real property 
which was the subject of such contract. 
‘‘(7) PROVISIONS APPLICABLE TO SERVICE CON-
TRACTS.— 
‘‘(A) SERVICES PERFORMED BEFORE AP-
POINTMENT.—In the case of any contract for 
services between any person and any enterprise 
for which the Agency has been appointed con-
145
servator or receiver, any claim of such person 
for services performed before the appointment 
of the conservator or the receiver shall be—
‘‘(i) a claim to be paid in accordance 
with subsections (b) and (e); and 
‘‘(ii) deemed to have arisen as of the 
date the conservator or receiver was ap-
pointed. 
‘‘(B) SERVICES
PERFORMED
AFTER
AP-
POINTMENT AND PRIOR TO REPUDIATION.—If, 
in the case of any contract for services de-
scribed under subparagraph (A), the conser-
vator or receiver accepts performance by the 
other person before the conservator or receiver 
makes any determination to exercise the right 
of repudiation of such contract under this sec-
tion—
‘‘(i) the other party shall be paid 
under the terms of the contract for the 
services performed; and 
‘‘(ii) the amount of such payment 
shall be treated as an administrative ex-
pense of the conservatorship or receiver-
ship.
146 
‘‘(C) ACCEPTANCE OF PERFORMANCE NO 
BAR TO SUBSEQUENT REPUDIATION.—The ac-
ceptance by any conservator or receiver of serv-
ices referred to under subparagraph (B) in con-
nection with a contract described in such sub-
paragraph shall not affect the right of the con-
servator or receiver to repudiate such contract 
under this section at any time after such per-
formance. 
‘‘(8) CERTAIN
QUALIFIED
FINANCIAL
CON-
TRACTS.— 
‘‘(A) 
RIGHTS
OF
PARTIES
TO
CON-
TRACTS.—Subject to paragraph (10) and not-
withstanding any other provision of this Act, 
any other Federal law, or the law of any State, 
no person shall be stayed or prohibited from ex-
ercising— 
‘‘(i) any right to cause the termi-
nation or liquidation of any qualified finan-
cial contract with an enterprise that arises 
upon the appointment of the Agency as re-
ceiver for such enterprise at any time after 
such appointment;
147 
‘‘(ii) any right under any security ar-
rangement relating to any contract or 
agreement described in clause (i); or 
‘‘(iii) any right to offset or net out 
any termination value, payment amount, or 
other transfer obligation arising under or 
in connection with 1 or more contracts and 
agreements described in clause (i), includ-
ing any master agreement for such con-
tracts or agreements. 
‘‘(B) APPLICABILITY
OF
OTHER
PROVI-
SIONS.—Paragraphs (10) and (12) of sub-
section (b) shall apply in the case of any judi-
cial action or proceeding brought against any 
receiver referred to under subparagraph (A), or 
the enterprise for which such receiver was ap-
pointed, by any party to a contract or agree-
ment described under subparagraph (A)(i) with 
such enterprise. 
‘‘(C) CERTAIN
TRANSFERS
NOT
AVOID-
ABLE.— 
‘‘(i) IN
GENERAL.—Notwithstanding 
paragraph (11), the Agency, whether act-
ing as such or as conservator or receiver of 
an enterprise, may not avoid any transfer
148 
of money or other property in connection 
with any qualified financial contract with 
an enterprise. 
‘‘(ii) 
EXCEPTION
FOR
CERTAIN 
TRANSFERS.—Clause (i) shall not apply to 
any transfer of money or other property in 
connection with any qualified financial con-
tract with an enterprise if the Agency de-
termines that the transferee had actual in-
tent to hinder, delay, or defraud such en-
terprise, the creditors of such enterprise, 
or any conservator or receiver appointed 
for such enterprise. 
‘‘(D) CERTAIN
CONTRACTS
AND
AGREE-
MENTS DEFINED.—In this subsection: 
‘‘(i) 
QUALIFIED
FINANCIAL
CON-
TRACT.—The term ‘qualified financial con-
tract’ means any securities contract, com-
modity contract, forward contract, repur-
chase agreement, swap agreement, and any 
similar agreement that the Agency deter-
mines by regulation to be a qualified finan-
cial contract for purposes of this para-
graph.
149 
‘‘(ii) SECURITIES
CONTRACT.—The 
term ‘securities contract’ has the meaning 
given to such term under section 741 of 
title 11, United States Code, except that 
the term ‘security’ (as used in such sec-
tion) shall be deemed to include any mort-
gage loan, any mortgage-related security 
(as defined in section 3(a)(41) of the Secu-
rities Exchange Act of 1934), and any in-
terest in any mortgage loan or mortgage- 
related security, and does not include any 
participation in a commercial mortgage 
loan. 
‘‘(iii) COMMODITY
CONTRACT.—The 
term ‘commodity contract’ has the mean-
ing given to such term in section 761 of 
title 11, United States Code. 
‘‘(iv) 
FORWARD
CONTRACT.—The 
term ‘forward contract’ has the meaning 
given to such term in section 101 of title 
11, United States Code. 
‘‘(v) REPURCHASE AGREEMENT.—The 
term ‘repurchase agreement’ has the mean-
ing given to such term in section 101 of 
title 11, the United States Code, except
150 
that the items (as described in such sec-
tion) which may be subject to any such 
agreement shall be deemed to include 
mortgage-related securities (as such term 
is defined in section 3(a)(41) of the Securi-
ties Exchange Act of 1934), any mortgage 
loan, and any interest in any mortgage 
loan and does not include any participation 
in a commercial mortgage loan unless the 
Agency determines by regulation, resolu-
tion, or order to include any such partici-
pation within the meaning of such term. 
‘‘(vi) SWAP AGREEMENT.—The term 
‘swap agreement’— 
‘‘(I) means any agreement, in-
cluding the terms and conditions in-
corporated by reference in any such 
agreement, which is a rate swap 
agreement, basis swap, commodity 
swap, forward rate agreement, inter-
est rate future, interest rate option 
purchased, forward foreign exchange 
agreement, rate cap agreement, rate 
floor agreement, rate collar agree-
ment, 
currency 
swap 
agreement,