201 
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 REGULATED 
ENTITY IS THE LESSOR.— 
‘‘(A) IN GENERAL.—If the conservator or 
receiver repudiates an unexpired written lease 
of real property of the regulated entity under 
which the regulated entity is the lessor and the 
lessee is not, as of the date of such repudiation, 
in default, the lessee under such lease may ei-
ther— 
‘‘(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 
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202 
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 
of the repudiation of the lease, and 
any damages which accrue after such 
date due to the nonperformance of 
any obligation of the regulated entity 
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). 
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203 
‘‘(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 
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 
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204 
after such date due to the non-
performance (after such date) of any 
obligation of the regulated entity 
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 
‘‘(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. 
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205 
‘‘(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 regulated 
entity for which the Agency has been appointed 
conservator or receiver, any claim of such per-
son for services performed before the appoint-
ment 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, 
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206 
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. 
‘‘(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.— 
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207 
‘‘(A) 
RIGHTS
OF
PARTIES
TO
CON-
TRACTS.—Subject to paragraphs (9) and (10) 
and notwithstanding any other provision of this 
Act, any other Federal law, or the law of any 
State, no person shall be stayed or prohibited 
from exercising— 
‘‘(i) any right such person has to 
cause the termination, liquidation, or accel-
eration of any qualified financial contract 
with a regulated entity that arises upon 
the appointment of the Agency as receiver 
for such regulated entity at any time after 
such appointment; 
‘‘(ii) any right under any security 
agreement or arrangement or other credit 
enhancement relating to one or more quali-
fied financial contracts 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. 
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208 
‘‘(B) APPLICABILITY
OF
OTHER
PROVI-
SIONS.—Paragraph (10) of subsection (b) shall 
apply in the case of any judicial action or pro-
ceeding brought against any receiver referred to 
under subparagraph (A), or the regulated entity 
for which such receiver was appointed, by any 
party to a contract or agreement described 
under subparagraph (A)(i) with such regulated 
entity. 
‘‘(C) CERTAIN
TRANSFERS
NOT
AVOID-
ABLE.— 
‘‘(i) IN
GENERAL.—Notwithstanding 
paragraph (11) or any other Federal or 
State laws relating to the avoidance of 
preferential or fraudulent transfers, the 
Agency, whether acting as such or as con-
servator or receiver of a regulated entity, 
may not avoid any transfer of money or 
other property in connection with any 
qualified financial contract with a regu-
lated entity. 
‘‘(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-
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209 
tract with a regulated entity if the Agency 
determines that the transferee had actual 
intent to hinder, delay, or defraud such 
regulated entity, the creditors of such reg-
ulated entity, or any conservator or re-
ceiver appointed for such regulated entity. 
‘‘(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, resolution, or order to 
be a qualified financial contract for pur-
poses of this paragraph. 
‘‘(ii) SECURITIES
CONTRACT.—The 
term ‘securities contract’— 
‘‘(I) means a contract for the 
purchase, sale, or loan of a security, a 
certificate of deposit, a mortgage loan, 
or any interest in a mortgage loan, a 
group or index of securities, certifi-
cates of deposit, or mortgage loans or 
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210 
interests therein (including any inter-
est therein or based on the value 
thereof) or any option on any of the 
foregoing, including any option to 
purchase or sell any such security, 
certificate of deposit, mortgage loan, 
interest, group or index, or option, 
and including any repurchase or re-
verse repurchase transaction on any 
such security, certificate of deposit, 
mortgage loan, interest, group or 
index, or option; 
‘‘(II) does not include any pur-
chase, sale, or repurchase obligation 
under a participation in a commercial 
mortgage loan unless the Agency de-
termines by regulation, resolution, or 
order to include any such agreement 
within the meaning of such term; 
‘‘(III) means any option entered 
into on a national securities exchange 
relating to foreign currencies; 
‘‘(IV) means the guarantee by or 
to any securities clearing agency of 
any settlement of cash, securities, cer-
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211 
tificates of deposit, mortgage loans or 
interests therein, group or index of se-
curities, certificates of deposit, or 
mortgage loans or interests therein 
(including any interest therein or 
based on the value thereof) or option 
on any of the foregoing, including any 
option to purchase or sell any such se-
curity, certificate of deposit, mortgage 
loan, interest, group or index, or op-
tion; 
‘‘(V) means any margin loan; 
‘‘(VI) means any other agree-
ment or transaction that is similar to 
any agreement or transaction referred 
to in this clause; 
‘‘(VII) means any combination of 
the agreements or transactions re-
ferred to in this clause; 
‘‘(VIII) means any option to 
enter into any agreement or trans-
action referred to in this clause; 
‘‘(IX) means a master agreement 
that provides for an agreement or 
transaction referred to in subclause 
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212 
(I), (III), (IV), (V), (VI), (VII), or 
(VIII), together with all supplements 
to any such master agreement, with-
out regard to whether the master 
agreement provides for an agreement 
or transaction that is not a securities 
contract under this clause, except that 
the master agreement shall be consid-
ered to be a securities contract under 
this clause only with respect to each 
agreement or transaction under the 
master agreement that is referred to 
in subclause (I), (III), (IV), (V), (VI), 
(VII), or (VIII); and 
‘‘(X) means any security agree-
ment or arrangement or other credit 
enhancement related to any agree-
ment or transaction referred to in this 
clause, including any guarantee or re-
imbursement obligation in connection 
with any agreement or transaction re-
ferred to in this clause. 
‘‘(iii) COMMODITY
CONTRACT.—The 
term ‘commodity contract’ means— 
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213 
‘‘(I) with respect to a futures 
commission merchant, a contract for 
the purchase or sale of a commodity 
for future delivery on, or subject to 
the rules of, a contract market or 
board of trade; 
‘‘(II) with respect to a foreign fu-
tures commission merchant, a foreign 
future; 
‘‘(III) with respect to a leverage 
transaction 
merchant, 
a 
leverage 
transaction; 
‘‘(IV) with respect to a clearing 
organization, a contract for the pur-
chase or sale of a commodity for fu-
ture delivery on, or subject to the 
rules of, a contract market or board 
of trade that is cleared by such clear-
ing organization, or commodity option 
traded on, or subject to the rules of, 
a contract market or board of trade 
that is cleared by such clearing orga-
nization; 
‘‘(V) with respect to a commodity 
options dealer, a commodity option; 
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214 
‘‘(VI) any other agreement or 
transaction that is similar to any 
agreement or transaction referred to 
in this clause; 
‘‘(VII) any combination of the 
agreements or transactions referred to 
in this clause; 
‘‘(VIII) any option to enter into 
any agreement or transaction referred 
to in this clause; 
‘‘(IX) a master agreement that 
provides for an agreement or trans-
action referred to in subclause (I), 
(II), (III), (IV), (V), (VI), (VII), or 
(VIII), together with all supplements 
to any such master agreement, with-
out regard to whether the master 
agreement provides for an agreement 
or transaction that is not a com-
modity contract under this clause, ex-
cept that the master agreement shall 
be considered to be a commodity con-
tract under this clause only with re-
spect to each agreement or trans-
action under the master agreement 
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215 
that is referred to in subclause (I), 
(II), (III), (IV), (V), (VI), (VII), or 
(VIII); or 
‘‘(X) any security agreement or 
arrangement or other credit enhance-
ment related to any agreement or 
transaction referred to in this clause, 
including any guarantee or reimburse-
ment obligation in connection with 
any agreement or transaction referred 
to in this clause. 
‘‘(iv) 
FORWARD
CONTRACT.—The 
term ‘forward contract’ means— 
‘‘(I) a contract (other than a 
commodity contract) for the purchase, 
sale, or transfer of a commodity or 
any similar good, article, service, 
right, or interest which is presently or 
in the future becomes the subject of 
dealing in the forward contract trade, 
or product or byproduct thereof, with 
a maturity date more than 2 days 
after the date the contract is entered 
into, including, a repurchase trans-
action, reverse repurchase transaction, 
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