II 
109TH CONGRESS 
2D SESSION 
H. R. 5585 
IN THE SENATE OF THE UNITED STATES 
SEPTEMBER 28, 2006 
Received 
AN ACT 
To improve the netting process for financial contracts, and 
for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
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SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Financial Netting Im-
provements Act of 2006’’. 
SEC. 2. TREATMENT OF CERTAIN AGREEMENTS BY CON-
SERVATORS OR RECEIVERS OF DEPOSITORY 
INSTITUTIONS. 
(a) DEFINITION OF SECURITIES CONTRACT.— 
(1) 
FDIC-INSURED
DEPOSITORY
INSTITU-
TIONS.—Section 11(e)(8)(D)(ii) of the Federal De-
posit Insurance Act (12 U.S.C. 1821(e)(8)(D)(ii)) is 
amended— 
(A) in subclause (I)— 
(i) by striking ‘‘mortgage loan, or’’ 
and inserting ‘‘mortgage loan,’’; and 
(ii) by inserting before the semicolon 
‘‘(whether or not such repurchase or re-
verse repurchase transaction is a ‘repur-
chase agreement’, as defined in clause 
(v))’’; 
(B) in subclause (IV)— 
(i) by inserting ‘‘(including by nova-
tion)’’ after ‘‘the guarantee’’; and 
(ii) by inserting before the semicolon 
‘‘(whether or not such settlement is in con-
nection with any agreement or transaction 
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referred to in subclauses (I) through (XII) 
(other than subclause (II))’’; 
(C) in subclause (IX), by striking ‘‘or 
(VIII)’’ each place such term appears and in-
serting ‘‘(VIII), (IX), or (X)’’; 
(D) by redesignating subclauses (VI), 
(VII), (VIII), (IX), and (X) as subclauses 
(VIII), (IX), (X), (XI), and (XII), respectively; 
and 
(E) by inserting after subclause (V) the 
following new subparagraphs: 
‘‘(VI) means any extension of 
credit for the clearance or settlement 
of securities transactions; 
‘‘(VII) means any loan trans-
action coupled with a securities collar 
transaction, any prepaid securities 
forward transaction, or any total re-
turn swap transaction coupled with a 
securities sale transaction;’’. 
(2) 
INSURED
CREDIT
UNIONS.—Section 
207(c)(8)(D)(ii) of the Federal Credit Union Act 
(12 U.S.C. 1787(c)(8)(D)(ii)) is amended— 
(A) in subclause (I)— 
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(i) by striking ‘‘mortgage loan, or’’ 
and inserting ‘‘mortgage loan,’’; and 
(ii) by inserting before the semicolon 
‘‘(whether or not such repurchase or re-
verse repurchase transaction is a ‘repur-
chase agreement’, as defined in clause 
(v))’’; 
(B) in subclause (IV)— 
(i) by inserting ‘‘(including by nova-
tion)’’ after ‘‘the guarantee’’; and 
(ii) by inserting before the semicolon 
‘‘(whether or not such settlement is in con-
nection with any agreement or transaction 
referred to in subclauses (I) through (XII) 
(other than subclause (II))’’; 
(C) in subclause (IX), by striking ‘‘or 
(VIII)’’ each place such term appears and in-
serting ‘‘(VIII), (IX), or (X)’’; 
(D) by redesignating subclauses (VI), 
(VII), (VIII), (IX), and (X) as subclauses 
(VIII), (IX), (X), (XI), and (XII), respectively; 
and 
(E) by inserting after subclause (V) the 
following new subparagraphs: 
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‘‘(VI) means any extension of 
credit for the clearance or settlement 
of securities transactions; 
‘‘(VII) means any loan trans-
action coupled with a securities collar 
transaction, any prepaid securities 
forward transaction, or any total re-
turn swap transaction coupled with a 
securities sale transaction;’’. 
(b) DEFINITION OF FORWARD CONTRACT.— 
(1) 
FDIC-INSURED
DEPOSITORY
INSTITU-
TIONS.—Section 11(e)(8)(D)(iv)(I) of the Federal 
Deposit 
Insurance 
Act 
(12 
U.S.C. 
1821(e)(8)(D)(iv)(I)) is amended by striking ‘‘trans-
action, reverse repurchase transaction’’ and inserting 
‘‘or reverse repurchase transaction (whether or not 
such repurchase or reverse repurchase transaction is 
a ‘repurchase agreement’, as defined in clause (v))’’. 
(2) 
INSURED
CREDIT
UNIONS.—Section 
207(c)(8)(D)(iv)(I) of the Federal Credit Union Act 
(12 U.S.C. 1787(c)(8)(D)(iv)(I)) is amended by 
striking ‘‘transaction, reverse repurchase trans-
action’’ and inserting ‘‘or reverse repurchase trans-
action (whether or not such repurchase or reverse 
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repurchase transaction is a ‘repurchase agreement’, 
as defined in clause (v))’’. 
(c) DEFINITION OF SWAP AGREEMENT.— 
(1) 
FDIC-INSURED
DEPOSITORY
INSTITU-
TIONS.—Section 11(e)(8)(D)(vi) of the Federal De-
posit Insurance Act (12 U.S.C. 1821(e)(8)(D)(vi)) is 
amended— 
(A) in subclause (I)— 
(i) by striking ‘‘or precious metals’’ 
and inserting ‘‘, precious metals, or other 
commodity’’; and 
(ii) by striking ‘‘or a weather swap, 
weather derivative, or weather option’’ and 
inserting ‘‘weather swap, option, future, or 
forward agreement; an emissions swap, op-
tion, future, or forward agreement; or an 
inflation swap, option, future, or forward 
agreement’’; 
(B) in subclause (II)— 
(i) by inserting ‘‘or other derivatives’’ 
after ‘‘dealings in the swap’’; and 
(ii) by striking ‘‘future, or option’’ 
and inserting ‘‘future, option, or spot 
transaction’’; and 
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(C) by striking ‘‘the Securities Act of 
1933, the Securities Exchange Act of 1934, the 
Public Utility Holding Company Act of 1935, 
the Trust Indenture Act of 1939, the Invest-
ment Company Act of 1940, the Investment 
Advisers Act of 1940, the Securities Investor 
Protection Act of 1970, the Commodity Ex-
change Act, the Gramm-Leach-Bliley Act, and 
the Legal Certainty for Bank Products Act of 
2000’’ and inserting ‘‘the Gramm-Leach-Bliley 
Act, the Legal Certainty for Bank Products Act 
of 2000, the securities laws (as such term is de-
fined in section 3(a)(47) of the Securities Ex-
change Act of 1934) and the Commodity Ex-
change Act’’. 
(2) 
INSURED
CREDIT
UNIONS.—Section 
207(c)(8)(D)(vi) of the Federal Credit Union Act 
(12 U.S.C. 1787(c)(8)(D)(vi)) is amended— 
(A) in subclause (I)— 
(i) by striking ‘‘or precious metals’’ 
and inserting ‘‘, precious metals, or other 
commodity’’; and 
(ii) by striking ‘‘or a weather swap, 
weather derivative, or weather option’’ and 
inserting ‘‘weather swap, option, future, or 
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forward agreement; an emissions swap, op-
tion, future, or forward agreement; or an 
inflation swap, option, future, or forward 
agreement’’; 
(B) in subclause (II)— 
(i) by inserting ‘‘or other derivatives’’ 
after ‘‘dealings in the swap’’; and 
(ii) by striking ‘‘future, or option’’ 
and inserting ‘‘future, option, or spot 
transaction’’; and 
(C) by striking ‘‘the Securities Act of 
1933, the Securities Exchange Act of 1934, the 
Public Utility Holding Company Act of 1935, 
the Trust Indenture Act of 1939, the Invest-
ment Company Act of 1940, the Investment 
Advisers Act of 1940, the Securities Investor 
Protection Act of 1970, the Commodity Ex-
change Act, the Gramm-Leach-Bliley Act, and 
the Legal Certainty for Bank Products Act of 
2000’’ and inserting ‘‘the Gramm-Leach-Bliley 
Act, the Legal Certainty for Bank Products Act 
of 2000, the securities laws (as such term is de-
fined in section 3(a)(47) of the Securities Ex-
change Act of 1934) and the Commodity Ex-
change Act’’. 
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SEC. 3. CLARIFYING AMENDMENTS RELATING TO DEFINI-
TION OF PERSON. 
(a) FDIC-INSURED DEPOSITORY INSTITUTIONS 
DEFINITION
OF PERSON.—Section 11(e)(8)(D) of the 
Federal Deposit Insurance Act (12 U.S.C. 1821(e)(8)(D)) 
is amended by adding at the end the following: 
‘‘(ix) PERSON.—The term ‘person’ includes 
any governmental entity in addition to any enti-
ty included in the definition of such term in 
section 1 of title 1, United States Code.’’. 
(b) INSURED CREDIT UNIONS DEFINITION OF PER-
SON.—Section 207(c)(8)(D) of the Federal Credit Union 
Act (12 U.S.C. 1787(c)(8)(D)) is amended by adding at 
the end the following: 
‘‘(ix) PERSON.—The term ‘person’ in-
cludes any governmental entity in addition 
to any entity included in the definition of 
such term in section 1 of title 1, United 
States Code.’’. 
SEC. 4. FEDERAL DEPOSIT INSURANCE CORPORATION IM-
PROVEMENT ACT OF 1991. 
(a) ENFORCEABILITY OF BILATERAL NETTING CON-
TRACTS.—Section 403 of the Federal Deposit Insurance 
Corporation Improvement Act of 1991 (12 U.S.C. 4403) 
is amended— 
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(1) in each of subsections (a) and (f), by strik-
ing ‘‘paragraphs (8)(E), (8)(F), and (10)(B) of’’ 
each place such term appears; and 
(2) in subsection (a), by inserting ‘‘terminated, 
liquidated, accelerated, and’’ after ‘‘institutions shall 
be’’. 
(b) ENFORCEABILITY OF CLEARING ORGANIZATION 
NETTING CONTRACTS.—Section 404 of the Federal De-
posit Insurance Corporation Improvement Act of 1991 (12 
U.S.C. 4404) is amended— 
(1) in each of subsections (a) and (h), by strik-
ing ‘‘paragraphs (8)(E), (8)(F), and (10)(B) of’’ 
each place such term appears; and 
(2) in subsection (a), by inserting ‘‘terminated, 
liquidated, accelerated, and’’ after ‘‘organization 
shall be’’. 
SEC. 5. CONFORMING AMENDMENTS. 
(a) CLARIFYING DEFINITIONS.—Title 11, United 
States Code, is amended— 
(1) in section 101— 
(A) in paragraph (22)(A)— 
(i) by striking ‘‘(domestic or foreign)’’ 
after ‘‘an entity’’; and 
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(ii) by inserting ‘‘(whether or not a 
‘customer’, as defined in section 741)’’ 
after ‘‘custodian for a customer’’; 
(B) in paragraph (22A)— 
(i) by striking ‘‘on any day during the 
previous 15-month period’’ each place it 
appears and inserting ‘‘at such time or on 
any day during the 15-month period pre-
ceding the date of the filing of the peti-
tion’’; and 
(ii) by inserting ‘‘(aggregated across 
counterparties)’’ after ‘‘principal amount 
outstanding’’; 
(C) in paragraph (25)(A)— 
(i) by inserting ‘‘, as defined in sec-
tion 761’’ after ‘‘commodity contract’’; and 
(ii) by striking ‘‘repurchase trans-
action, reverse repurchase transaction,’’ 
and inserting ‘‘repurchase or reverse re-
purchase transaction (whether or not such 
repurchase or reverse repurchase trans-
action is a ‘repurchase agreement’, as de-
fined in this section)’’; 
(D) in paragraph (53B)(A)— 
(i) in clause (i)— 
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(I) in subclause (II), by striking 
‘‘or precious metals’’ and inserting ‘‘, 
precious metals, or other commodity’’; 
(II) in subclause (VII), by strik-
ing ‘‘or’’ at the end; 
(III) in subclause (VIII), by 
striking ‘‘weather derivative, or weath-
er option’’ and inserting ‘‘option, fu-
ture, or forward agreement’’; and 
(IV) by adding at the end the fol-
lowing: 
‘‘(IX) an emissions swap, option, 
future, or forward agreement; or 
‘‘(X) an inflation swap, option, 
future, or forward agreement;’’; and 
(ii) in clause (ii)— 
(I) in subclause (I), by inserting 
‘‘or other derivatives’’ after ‘‘dealings 
in the swap’’; and 
(II) in subclause (II), by striking 
‘‘future, or option’’ and inserting ‘‘fu-
ture, option, or spot transaction’’; and 
(E) in paragraph (53B)(B), by striking 
‘‘the Securities Act of 1933, the Securities Ex-
change Act of 1934, the Public Utility Holding 
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Company Act of 1935, the Trust Indenture Act 
of 1939, the Investment Company Act of 1940, 
the Investment Advisers Act of 1940, the Secu-
rities Investor Protection Act of 1970, the Com-
modity Exchange Act, the Gramm-Leach-Bliley 
Act, and the Legal Certainty for Bank Products 
Act of 2000’’ and inserting ‘‘the Gramm-Leach- 
Bliley Act, the Legal Certainty for Bank Prod-
ucts Act of 2000, the securities laws (as such 
term is defined in section 3(a)(47) of the Secu-
rities Exchange Act of 1934) and the Com-
modity Exchange Act’’; 
(2) in section 362(b)— 
(A) by striking paragraphs (6) and (7) and 
inserting the following: 
‘‘(6) under subsection (a) of this section, of the 
exercise by a commodity broker, forward contract 
merchant, stockbroker, financial institution, finan-
cial participant, or securities clearing agency of any 
contractual right (as defined in section 555 or 556) 
under any security agreement or arrangement or 
other credit enhancement forming a part of or re-
lated to any commodity contract, forward contract 
or securities contract, or of any contractual right (as 
defined in section 555 or 556) to offset or net out 
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any termination value, payment amount, or other 
transfer obligation arising under or in connection 
with 1 or more such contracts, including any master 
agreement for such contracts; 
‘‘(7) under subsection (a) of this section, of the 
exercise by a repo participant or financial partici-
pant of any contractual right (as defined in section 
559) under any security agreement or arrangement 
or other credit enhancement forming a part of or re-
lated to any repurchase agreement, or of any con-
tractual right (as defined in section 559) to offset or 
net out any termination value, payment amount, or 
other transfer obligation arising under or in connec-
tion with 1 or more such agreements, including any 
master agreement for such agreements;’’; 
(B) by striking paragraph (17) and insert-
ing the following: 
‘‘(17) under subsection (a) of this section, of 
the exercise by a swap participant or financial par-
ticipant of any contractual right (as defined in sec-
tion 560) under any security agreement or arrange-
ment or other credit enhancement forming a part of 
or related to any swap agreement, or of any contrac-
tual right (as defined in section 560) to offset or net 
out any termination value, payment amount, or 
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other transfer obligation arising under or in connec-
tion with 1 or more such agreements, including any 
master agreement for such agreements;’’; and 
(C) by striking paragraph (27) and insert-
ing the following: 
‘‘(27) under subsection (a) of this section, of 
the exercise by a master netting agreement partici-
pant of any contractual right (as defined in section 
555, 556, 559, or 560) under any security agree-
ment or arrangement or other credit enhancement 
forming a part of or related to any master netting 
agreement, or of any contractual right (as defined in 
section 555, 556, 559, or 560) to offset or net out 
any termination value, payment amount, or other 
transfer obligation arising under or in connection 
with 1 or more such master netting agreements to 
the extent that such participant is eligible to exercise 
such rights under paragraph (6), (7), or (17) for 
each individual contract covered by the master net-
ting agreement in issue; and’’; and 
(3) in section 741(7)(A)— 
(A) in clause (i)— 
(i) by striking ‘‘mortgage loan or’’ 
and inserting ‘‘mortgage loan,’’; and 
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(ii) by inserting before the semicolon 
‘‘(whether or not such repurchase or re-
verse repurchase transaction is a ‘repur-
chase agreement’, as defined in section 
101)’’; 
(B) in clause (iii)— 
(i) by inserting ‘‘(including by nova-
tion)’’ after ‘‘the guarantee’’; and 
(ii) by inserting before the semicolon 
‘‘(whether or not such settlement is in con-
nection with any agreement or transaction 
referred to in clauses (i) through (xi))’’; 
(C) in clause (viii), by striking ‘‘or (vii)’’ 
each place it appears and inserting ‘‘(vii), (viii), 
or (ix)’’; 
(D) by redesignating clauses (v) through 
(ix) as clauses (vii) through (xi), respectively; 
and 
(E) by inserting after clause (iv) the fol-
lowing: 
‘‘(v) any extension of credit for 
the clearance or settlement of securi-
ties transactions; 
‘‘(vi) any loan transaction cou-
pled with a securities collar trans-
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action, any prepaid forward securities 
transaction, or any total return swap 
transaction coupled with a securities 
sale transaction;’’. 
(b) LIMITATION
OF AVOIDANCE POWERS UNDER 
MASTER NETTING AGREEMENT.—Section 546 of title 11, 
United States Code, is amended— 
(1) in subsection (e)— 
(A) by inserting ‘‘(or for the benefit of)’’ 
before ‘‘a commodity broker’’; and 
(B) by inserting ‘‘or that is a transfer 
made by or to (or for the benefit of) a com-
modity broker, forward contract merchant, 
stockbroker, financial institution, financial par-
ticipant, or securities clearing agency, in con-
nection with a securities contract, as defined in 
section 741(7), commodity contract, as defined 
in section 761(4), or forward contract,’’ after 
‘‘securities clearing agency,’’; 
(2) in subsection (f)— 
(A) by striking ‘‘that is a margin payment, 
as defined in section 741 or 761 of this title, 
or settlement payment, as defined in section 
741 of this title,’’; and 
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(B) by inserting ‘‘(or for the benefit of)’’ 
before ‘‘a repo participant’’; 
(3) in subsection (g), by inserting ‘‘(or for the 
benefit of)’’ before ‘‘a swap participant’’; and 
(4) in subsection (j), by inserting ‘‘(or for the 
benefit of)’’ after ‘‘made by or to’’. 
(c) SIPC STAY.—Section 5(b)(2)(C)(iii) of the Secu-
rities Investor Protection Act of 1970 (15 U.S.C. 
78eee(b)(2)(C)(iii)) is amended— 
(1) by inserting ‘‘a derivatives clearing organi-
zation (as defined in the Commodity Exchange Act), 
a multilateral clearing organization (as defined in 
the Federal Deposit Insurance Corporation Improve-
ment Act of 1991),’’ after ‘‘rule or bylaw of’’; and 
(2) by striking ‘‘or a securities clearance agen-
cy, a right set forth in a bylaw of a clearing organi-
zation or contract market’’ and inserting ‘‘a securi-
ties clearing agency, a contract market designated 
under the Commodity Exchange Act, a derivatives 
transaction execution facility registered under the 
Commodity Exchange Act, or a board of trade (as 
defined in the Commodity Exchange Act),’’. 
(d) SAVINGS CLAUSE.—Title IX of the Bankruptcy 
Abuse Prevention and Consumer Protection Act of 2005 
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(Public Law 109–8, 119 Stat. 146) is amended by adding 
at the end the following: 
‘‘SEC. 912. SAVINGS CLAUSE. 
‘‘The meanings of terms used in this title are applica-
ble for the purposes of this title only, and shall not be 
construed or applied so as to challenge or affect the char-
acterization, definition, or treatment of any similar terms 
under any other statute, regulation, or rule, including the 
Gramm-Leach-Bliley Act, the Legal Certainty for Bank 
Products Act of 2000, the securities laws (as such term 
is defined in section 3(a)(47) of the Securities Exchange 
Act of 1934), and the Commodity Exchange Act.’’. 
SEC. 6. WALKAWAY CLAUSES. 
(a) FDIC-INSURED DEPOSITORY INSTITUTIONS.— 
Section 11(e)(8)(G) of the Federal Deposit Insurance Act 
(12 U.S.C. 1821(e)(8)(G)) is amended by striking clause 
(ii) and inserting the following new clauses: 
‘‘(ii) LIMITED SUSPENSION OF CER-
TAIN
OBLIGATIONS.—In the case of a 
qualified financial contract referred to in 
clause (i), any payment or delivery obliga-
tions otherwise due from a party pursuant 
to the qualified financial contract shall be 
suspended from the time the receiver is ap-
pointed until the earlier of— 
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‘‘(I) the time such party receives 
notice that such contract has been 
transferred pursuant to subparagraph 
(A); or 
‘‘(II) 5:00 p.m. (eastern time) on 
the business day following the date of 
the appointment of the receiver. 
‘‘(iii) 
WALKAWAY
CLAUSE
DE-
FINED.—For purposes of this subpara-
graph, the term ‘walkaway clause’ means 
any provision in a qualified financial con-
tract that suspends, conditions, or extin-
guishes a payment obligation of a party, in 
whole or in part, or does not create a pay-
ment obligation of a party that would oth-
erwise exist, solely because of such party’s 
status as a nondefaulting party in connec-
tion with the insolvency of an insured de-
pository institution that is a party to the 
contract or the appointment of or the exer-
cise of rights or powers by a conservator or 
receiver of such depository institution, and 
not as a result of a party’s exercise of any 
right to offset, setoff, or net obligations 
that exist under the contract, any other 
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contract between those parties, or applica-
ble law.’’. 
(b) 
INSURED
CREDIT
UNIONS.—Section 
207(c)(8)(G) of the Federal Credit Union Act 12 U.S.C. 
1787(c)(8)(G)) is amended by striking clause (ii) and in-
serting the following new clauses: 
‘‘(ii) LIMITED SUSPENSION OF CER-
TAIN
OBLIGATIONS.—In the case of a 
qualified financial contract referred to in 
clause (i), any payment or delivery obliga-
tions otherwise due from a party pursuant 
to the qualified financial contract shall be 
suspended from the time the liquidating 
agent is appointed until the earlier of— 
‘‘(I) the time such party receives 
notice that such contract has been 
transferred pursuant to subparagraph 
(A); or 
‘‘(II) 5:00 p.m. (eastern time) on 
the business day following the date of 
the appointment of the liquidating 
agent. 
‘‘(iii) 
WALKAWAY
CLAUSE
DE-
FINED.—For purposes of this subpara-
graph, the term ‘walkaway clause’ means 
VerDate Aug 31 2005 
17:11 Oct 01, 2006
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