[Congressional Record (Bound Edition), Volume 151 (2005), Part 3]
[Senate]
[Pages 3529-3542]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 51. Mr. BINGAMAN submitted an amendment intended to be proposed by 
him to the bill S. 256, to amend title 11 of the United States Code, 
and for other purposes; which was ordered to lie on the table; as 
follows:

        On page 14, strike line 2 and all that follows through 
     line 4 and insert the following: ``tion of a party in 
     interest, may order the''.
       On page 14, line 7, insert ``and reasonable trustee fees 
     based upon the trustee's time in prosecuting the motion,'' 
     after ``fees,''.
       Beginning on page 14, strike line 10 and all that follows 
     through page 15, line 17, and insert the following:
       ``(ii) the court grants such motion.
       ``(B) Any costs and fees awarded under subparagraph (A) 
     shall have the administrative priority described in section 
     507(a)(2) of this title, and such costs and fees shall be 
     excepted from the discharge described in section 727 of this 
     title in the current or any successor cases filed under this 
     title.

       On page 16, strike line 8 and all that follows through line 
     10 and insert the following: ``the''.

       On page 28, between lines 17 and 18, insert the following:
       (l) Additional Ground of Nondischarge-
     ability.--Section 523(a) of title 11, United States Code, is 
     amended by inserting after paragraph (18) the following:
       ``(18A) for costs or fees imposed by a bankruptcy court 
     under section 707(b)(4) of this title, whether imposed in the 
     current case or a prior case filed under this title.''.
       On page 28, line 18, strike ``(k)'' and insert ``(m)''.
       On page 59, strike lines 16 and 17 and insert the 
     following:
       ``(5) The declaration shall consist of the following 
     certification:
       On page 60, strike line 4 and all that follows through line 
     10.
       On page 182, line 4, strike ``EXPANSION'' and insert 
     ``ENFORCEMENT''.

       On page 182, line 7, insert `` fraud and abuse exist in the 
     bankruptcy system and that in order to curb this fraud and 
     abuse, Federal bankruptcy courts should vigorously enforce'' 
     after ``that''.
       On page 182, line 8, strike ``App.)'' and insert ``App.).''
       On page 182, strike line 9 and all that follows through 
     line 19.
       On page 459, lines 24 and 25, strike ``, even if such 
     amount has been discharged in a prior case under this 
     title''.
                                 ______
                                 
  SA 52. Mr. DODD submitted an amendment intended to be proposed by

[[Page 3530]]

him to the bill S. 256, to amend title 11 of the United States Code, 
and for other purposes; as follows:

        At the appropriate place, insert the following:

     SEC. __. EXTENSIONS OF CREDIT TO UNDERAGE CONSUMERS.

       Section 127(c) of the Truth in Lending Act (15 U.S.C. 
     1637(c)) is amended by inserting after paragraph (5), the 
     following:
       ``(6) Applications from underage consumers.--
       ``(A) Prohibition on issuance.--No credit card may be 
     issued to, or open end credit plan established on behalf of, 
     a consumer who has not attained the age of 21, unless the 
     consumer has submitted a written application to the card 
     issuer that meets the requirements of subparagraph (B).
       ``(B) Application requirements.--An application to open a 
     credit card account by an individual who has not attained the 
     age of 21 as of the date of submission of the application 
     shall require--
       ``(i) the signature of the parent, legal guardian, or 
     spouse of the consumer, or any other individual having a 
     means to repay debts incurred by the consumer in connection 
     with the account, indicating joint liability for debts 
     incurred by the consumer in connection with the account 
     before the consumer has attained the age of 21;
       ``(ii) submission by the consumer of financial information 
     indicating an independent means of repaying any obligation 
     arising from the proposed extension of credit in connection 
     with the account; or
       ``(iii) proof by the consumer that the consumer has 
     completed a credit counseling course of instruction by a 
     nonprofit budget and credit counseling agency approved by the 
     Board for such purpose.
       ``(C) Minimum requirements for counseling agencies.--To be 
     approved by the Board under subparagraph (B)(iii), a credit 
     counseling agency shall, at a minimum--
       ``(i) be a nonprofit budget and credit counseling agency, 
     the majority of the board of directors of which--

       ``(I) is not employed by the agency; and
       ``(II) will not directly or indirectly benefit financially 
     from the outcome of a credit counseling session;

       ``(ii) if a fee is charged for counseling services, charge 
     a reasonable fee, and provide services without regard to 
     ability to pay the fee; and
       ``(iii) provide trained counselors who receive no 
     commissions or bonuses based on referrals, and demonstrate 
     adequate experience and background in providing credit 
     counseling.''.
                                 ______
                                 
  SA 53. Mr. DODD submitted an amendment intended to be proposed by him 
to the bill S. 256, to amend title 11 of the United States Code, and 
for other purposes; as follows:

        At the appropriate place, insert the following:

     SEC. __. PRIOR NOTICE OF RATE INCREASES REQUIRED.

       Section 127 of the Truth in Lending Act (15 U.S.C. 1637) is 
     amended by adding at the end the following:
       ``(h) Advance Notice of Increase in Interest Rate 
     Required.--
       ``(1) In general.--In the case of any credit card account 
     under an open end consumer credit plan, no increase in any 
     annual percentage rate of interest (other than an increase 
     due to the expiration of any introductory percentage rate of 
     interest, or due solely to a change in another rate of 
     interest to which such rate is indexed)--
       ``(A) may take effect before the beginning of the billing 
     cycle which begins not less than 15 days after the obligor 
     receives notice of such increase; or
       ``(B) may apply to any outstanding balance of credit under 
     such plan as of the date of the notice of the increase 
     required under paragraph (1).
       ``(2) Notice of right to cancel.--The notice referred to in 
     paragraph (1) with respect to an increase in any annual 
     percentage rate of interest shall be made in a clear and 
     conspicuous manner and shall contain a brief statement of the 
     right of the obligor to cancel the account before the 
     effective date of the increase.''.

     SEC. __. FREEZE ON INTEREST RATE TERMS AND FEES ON CANCELED 
                   CARDS.

       Section 127 of the Truth in Lending Act (15 U.S.C. 1637), 
     is amended by adding at the end the following:
       ``(i) Freeze on Interest Rate Terms and Fees on Canceled 
     Cards.--If an obligor referred to in subsection (h) closes or 
     cancels a credit card account before the beginning of the 
     billing cycle referred to in subsection (h)(1)--
       ``(1) an annual percentage rate of interest applicable 
     after the cancellation with respect to the outstanding 
     balance on the account as of the date of cancellation may not 
     exceed any annual percentage rate of interest applicable with 
     respect to such balance under the terms and conditions in 
     effect before the date of the notice of any increase referred 
     to in subsection (h)(1); and
       ``(2) the repayment of the outstanding balance after the 
     cancellation shall be subject to all other terms and 
     conditions applicable with respect to such account before the 
     date of the notice of the increase referred to in subsection 
     (h).''.
                                 ______
                                 
  SA 54. Mr. BENNETT submitted an amendment intended to be proposed by 
him to the bill S. 256, to amend title 11 of the United States Code, 
and for other purposes; which was ordered to lie on the table; as 
follows:

       Strike title IX and insert the following:

                TITLE IX--FINANCIAL CONTRACT PROVISIONS

     SEC. 901. TREATMENT OF CERTAIN AGREEMENTS BY CONSERVATORS OR 
                   RECEIVERS OF INSURED DEPOSITORY INSTITUTIONS.

       (a) Definition of Qualified Financial Contract.--
       (1) FDIC-insured depository institutions.--Section 
     11(e)(8)(D) of the Federal Deposit Insurance Act (12 U.S.C. 
     1821(e)(8)(D)) is amended--
       (A) by striking ``subsection--'' and inserting 
     ``subsection, the following definitions shall apply:''; and
       (B) in clause (i), by inserting ``, resolution, or order'' 
     after ``any similar agreement that the Corporation determines 
     by regulation''.
       (2) Insured credit unions.--Section 207(c)(8)(D) of the 
     Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)) is 
     amended--
       (A) by striking ``subsection--'' and inserting 
     ``subsection, the following definitions shall apply:''; and
       (B) in clause (i), by inserting ``, resolution, or order'' 
     after ``any similar agreement that the Board determines by 
     regulation''.
       (b) Definition of Securities Contract.--
       (1) FDIC-insured depository institutions.--Section 
     11(e)(8)(D)(ii) of the Federal Deposit Insurance Act (12 
     U.S.C. 1821(e)(8)(D)(ii)) is amended to read as follows:
       ``(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, any 
     interest in a mortgage loan, a group or index of securities, 
     certificates of deposit, or mortgage loans or interests 
     therein (including any interest 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 reverse repurchase 
     transaction on any such security, certificate of deposit, 
     mortgage loan, interest, group or index, or option (whether 
     or not such repurchase or reverse repurchase transaction is a 
     repurchase agreement as defined in section 11(e)(8)(D)(c));
       ``(II) does not include any purchase, sale, or repurchase 
     obligation under a participation in a commercial mortgage 
     loan unless the Corporation determines by regulation, 
     resolution, or order to include any such agreement within the 
     meaning of such term (whether or not such repurchase or 
     reverse repurchase is a `repurchase agreement' as defined in 
     clause (v));
       ``(III) means any option entered into on a national 
     securities exchange relating to foreign currencies;
       ``(IV) means the guarantee (including by novation) by or to 
     any securities clearing agency of any settlement of cash, 
     securities, certificates of deposit, mortgage loans or 
     interests therein, group or index of securities, 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 security, certificate of deposit, mortgage 
     loan, interest, group or index, or option (whether or not 
     such settlement is in connection with any agreement or 
     transaction referred to in subclause (I), (III), (IV), (V), 
     (VI), (VII), (VIII), (IX), (X), or (XI));
       ``(V) means any margin loan;
       ``(VI) any extension of credit for the clearance or 
     settlement of securities transactions;
       ``(VII) any collar/loan transaction related to securities, 
     prepaid forward transaction related to securities, or sale/
     total return swap transaction related to securities;
       ``(VIII) means any other agreement or transaction that is 
     similar to any agreement or transaction referred to in this 
     clause;
       ``(IX) means any combination of the agreements or 
     transactions referred to in this clause;
       ``(X) means any option to enter into any agreement or 
     transaction referred to in this clause;
       ``(XI) means a master agreement that provides for an 
     agreement or transaction referred to in subclause (I), (III), 
     (IV), (V), (VI), (VII), (VIII), (IX), or (X) together with 
     all supplements to any such master agreement, without 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 considered 
     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), (VIII), (IX), or (X); and
       ``(XII) means any security agreement or arrangement or 
     other credit enhancement

[[Page 3531]]

     related to any agreement or transaction referred to in this 
     clause, including any guarantee or reimbursement obligation 
     in connection with any agreement or transaction referred to 
     in this clause.''.

       (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 to read as follows:
       ``(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, 
     certificates of deposit, or mortgage loans or interests 
     therein (including any interest 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 reverse repurchase 
     transaction on any such security, certificate of deposit, 
     mortgage loan, interest, group or index, or option;
       ``(II) does not include any purchase, sale, or repurchase 
     obligation under a participation in a commercial mortgage 
     loan unless the Board determines 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, certificates of 
     deposit, mortgage loans or interests therein, group or index 
     of securities, 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 security, 
     certificate of deposit, mortgage loan, interest, group or 
     index, or option;
       ``(V) means any margin loan;
       ``(VI) means any other agreement or transaction that is 
     similar to any agreement or transaction referred to in this 
     clause;
       ``(VII) means any combination of the agreements or 
     transactions referred to in this clause;
       ``(VIII) means any option to enter into any agreement or 
     transaction referred to in this clause;
       ``(IX) means a master agreement that provides for an 
     agreement or transaction referred to in subclause (I), (III), 
     (IV), (V), (VI), (VII), or (VIII), together with all 
     supplements to any such master agreement, without 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 considered 
     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 agreement or arrangement or other 
     credit enhancement related to any agreement or transaction 
     referred to in this clause, including any guarantee or 
     reimbursement obligation in connection with any agreement or 
     transaction referred to in this clause.''.

       (c) Definition of Commodity Contract.--
       (1) FDIC-insured depository institutions.--Section 
     11(e)(8)(D)(iii) of the Federal Deposit Insurance Act (12 
     U.S.C. 1821(e)(8)(D)(iii)) is amended to read as follows:
       ``(iii) Commodity contract.--The term `commodity contract' 
     means--

       ``(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 futures 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 purchase or sale of a commodity for future delivery 
     on, or subject to the rules of, a contract market or board of 
     trade that is cleared by such clearing 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 organization;
       ``(V) with respect to a commodity options dealer, a 
     commodity option;
       ``(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 
     transaction referred to in subclause (I), (II), (III), (IV), 
     (V), (VI), (VII), or (VIII), together with all supplements to 
     any such master agreement, without regard to whether the 
     master agreement provides for an agreement or transaction 
     that is not a commodity contract under this clause, except 
     that the master agreement shall be considered to be a 
     commodity contract under this clause only with respect to 
     each agreement or transaction under the master agreement 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 
     enhancement related to any agreement or transaction referred 
     to in this clause, including any guarantee or reimbursement 
     obligation in connection with any agreement or transaction 
     referred to in this clause.''.

       (2) Insured credit unions.--Section 207(c)(8)(D)(iii) of 
     the Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)(iii)) 
     is amended to read as follows:
       ``(iii) Commodity contract.--The term `commodity contract' 
     means--

       ``(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 futures 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 purchase or sale of a commodity for future delivery 
     on, or subject to the rules of, a contract market or board of 
     trade that is cleared by such clearing 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 organization;
       ``(V) with respect to a commodity options dealer, a 
     commodity option;
       ``(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 
     transaction referred to in subclause (I), (II), (III), (IV), 
     (V), (VI), (VII), or (VIII), together with all supplements to 
     any such master agreement, without regard to whether the 
     master agreement provides for an agreement or transaction 
     that is not a commodity contract under this clause, except 
     that the master agreement shall be considered to be a 
     commodity contract under this clause only with respect to 
     each agreement or transaction under the master agreement 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 
     enhancement related to any agreement or transaction referred 
     to in this clause, including any guarantee or reimbursement 
     obligation in connection with any agreement or transaction 
     referred to in this clause.''.

       (d) Definition of Forward Contract.--
       (1) FDIC-insured depository institutions.--Section 
     11(e)(8)(D)(iv) of the Federal Deposit Insurance Act (12 
     U.S.C. 1821(e)(8)(D)(iv)) is amended to read as follows:
       ``(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 transaction, reverse 
     repurchase transaction, consignment, lease, swap, hedge 
     transaction, deposit, loan, option, allocated transaction 
     (whether or not such repurchase or reverse repurchase or 
     reverse repurchase transaction is a repurchase agreement as 
     defined in section 11(e)(8)(D)(v)), unallocated transaction, 
     or any other similar agreement;
       ``(II) any combination of agreements or transactions 
     referred to in subclauses (I) and (III);
       ``(III) any option to enter into any agreement or 
     transaction referred to in subclause (I) or (II);
       ``(IV) a master agreement that provides for an agreement or 
     transaction referred to in subclauses (I), (II), or (III), 
     together with all supplements to any such master agreement, 
     without regard to whether the master agreement provides for 
     an agreement or transaction that is not a forward contract 
     under this clause, except that the master agreement shall be 
     considered to be a forward contract under this clause only 
     with respect to each agreement or transaction under the 
     master agreement that is referred to in subclause (I), (II), 
     or (III); or
       ``(V) any security agreement or arrangement or other credit 
     enhancement related to any agreement or transaction referred 
     to in subclause (I), (II), (III), or (IV), including any 
     guarantee or reimbursement obligation in connection with any 
     agreement or transaction referred to in any such 
     subclause.''.

       (2) Insured credit unions.--Section 207(c)(8)(D)(iv) of the 
     Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)(iv)) is 
     amended to read as follows:
       ``(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

[[Page 3532]]

     or byproduct thereof, with a maturity date more than 2 days 
     after the date the contract is entered into, including, a 
     repurchase transaction, reverse repurchase transaction, 
     consignment, lease, swap, hedge transaction, deposit, loan, 
     option, allocated transaction, unallocated transaction, or 
     any other similar agreement;
       ``(II) any combination of agreements or transactions 
     referred to in subclauses (I) and (III);
       ``(III) any option to enter into any agreement or 
     transaction referred to in subclause (I) or (II);
       ``(IV) a master agreement that provides for an agreement or 
     transaction referred to in subclauses (I), (II), or (III), 
     together with all supplements to any such master agreement, 
     without regard to whether the master agreement provides for 
     an agreement or transaction that is not a forward contract 
     under this clause, except that the master agreement shall be 
     considered to be a forward contract under this clause only 
     with respect to each agreement or transaction under the 
     master agreement that is referred to in subclause (I), (II), 
     or (III); or
       ``(V) any security agreement or arrangement or other credit 
     enhancement related to any agreement or transaction referred 
     to in subclause (I), (II), (III), or (IV), including any 
     guarantee or reimbursement obligation in connection with any 
     agreement or transaction referred to in any such 
     subclause.''.

       (e) Definition of Repurchase Agreement.--
       (1) FDIC-insured depository institutions.--Section 
     11(e)(8)(D)(v) of the Federal Deposit Insurance Act (12 
     U.S.C. 1821(e)(8)(D)(v)) is amended to read as follows:
       ``(v) Repurchase agreement.--The term `repurchase 
     agreement' (which definition also applies to a reverse 
     repurchase agreement)--

       ``(I) means an agreement, including related terms, which 
     provides for the transfer of one or more certificates of 
     deposit, mortgage-related securities (as such term is defined 
     in the Securities Exchange Act of 1934), mortgage loans, 
     interests in mortgage-related securities or mortgage loans, 
     eligible bankers' acceptances, qualified foreign government 
     securities or securities that are direct obligations of, or 
     that are fully guaranteed by, the United States or any agency 
     of the United States against the transfer of funds by the 
     transferee of such certificates of deposit, eligible bankers' 
     acceptances, securities, mortgage loans, or interests with a 
     simultaneous agreement by such transferee to transfer to the 
     transferor thereof certificates of deposit, eligible bankers' 
     acceptances, securities, mortgage loans, or interests as 
     described above, at a date certain not later than 1 year 
     after such transfers or on demand, against the transfer of 
     funds, or any other similar agreement;
       ``(II) does not include any repurchase obligation under a 
     participation in a commercial mortgage loan unless the 
     Corporation determines by regulation, resolution, or order to 
     include any such participation within the meaning of such 
     term;
       ``(III) means any combination of agreements or transactions 
     referred to in subclauses (I) and (IV);
       ``(IV) means any option to enter into any agreement or 
     transaction referred to in subclause (I) or (III);
       ``(V) means a master agreement that provides for an 
     agreement or transaction referred to in subclause (I), (III), 
     or (IV), together with all supplements to any such master 
     agreement, without regard to whether the master agreement 
     provides for an agreement or transaction that is not a 
     repurchase agreement under this clause, except that the 
     master agreement shall be considered to be a repurchase 
     agreement under this subclause only with respect to each 
     agreement or transaction under the master agreement that is 
     referred to in subclause (I), (III), or (IV); and
       ``(VI) means any security agreement or arrangement or other 
     credit enhancement related to any agreement or transaction 
     referred to in subclause (I), (III), (IV), or (V), including 
     any guarantee or reimbursement obligation in connection with 
     any agreement or transaction referred to in any such 
     subclause.

     For purposes of this clause, the term `qualified foreign 
     government security' means a security that is a direct 
     obligation of, or that is fully guaranteed by, the central 
     government of a member of the Organization for Economic 
     Cooperation and Development (as determined by regulation or 
     order adopted by the appropriate Federal banking 
     authority).''.
       (2) Insured credit unions.--Section 207(c)(8)(D)(v) of the 
     Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)(v)) is 
     amended to read as follows:
       ``(v) Repurchase agreement.--The term `repurchase 
     agreement' (which definition also applies to a reverse 
     repurchase agreement)--

       ``(I) means an agreement, including related terms, which 
     provides for the transfer of one or more certificates of 
     deposit, mortgage-related securities (as such term is defined 
     in the Securities Exchange Act of 1934), mortgage loans, 
     interests in mortgage-related securities or mortgage loans, 
     eligible bankers' acceptances, qualified foreign government 
     securities or securities that are direct obligations of, or 
     that are fully guaranteed by, the United States or any agency 
     of the United States against the transfer of funds by the 
     transferee of such certificates of deposit, eligible bankers' 
     acceptances, securities, mortgage loans, or interests with a 
     simultaneous agreement by such transferee to transfer to the 
     transferor thereof certificates of deposit, eligible bankers' 
     acceptances, securities, mortgage loans, or interests as 
     described above, at a date certain not later than 1 year 
     after such transfers or on demand, against the transfer of 
     funds, or any other similar agreement;
       ``(II) does not include any repurchase obligation under a 
     participation in a commercial mortgage loan unless the Board 
     determines by regulation, resolution, or order to include any 
     such participation within the meaning of such term;
       ``(III) means any combination of agreements or transactions 
     referred to in subclauses (I) and (IV);
       ``(IV) means any option to enter into any agreement or 
     transaction referred to in subclause (I) or (III);
       ``(V) means a master agreement that provides for an 
     agreement or transaction referred to in subclause (I), (III), 
     or (IV), together with all supplements to any such master 
     agreement, without regard to whether the master agreement 
     provides for an agreement or transaction that is not a 
     repurchase agreement under this clause, except that the 
     master agreement shall be considered to be a repurchase 
     agreement under this subclause only with respect to each 
     agreement or transaction under the master agreement that is 
     referred to in subclause (I), (III), or (IV); and
       ``(VI) means any security agreement or arrangement or other 
     credit enhancement related to any agreement or transaction 
     referred to in subclause (I), (III), (IV), or (V), including 
     any guarantee or reimbursement obligation in connection with 
     any agreement or transaction referred to in any such 
     subclause.

     For purposes of this clause, the term `qualified foreign 
     government security' means a security that is a direct 
     obligation of, or that is fully guaranteed by, the central 
     government of a member of the Organization for Economic 
     Cooperation and Development (as determined by regulation or 
     order adopted by the appropriate Federal banking 
     authority).''.
       (f) Definition of Swap Agreement.--
       (1) FDIC-insured depository institutions.--Section 
     11(e)(8)(D)(vi) of the Federal Deposit Insurance Act (12 
     U.S.C. 1821(e)(8)(D)(vi)) is amended to read as follows:
       ``(vi) Swap agreement.--The term `swap agreement' means--

       ``(I) any agreement, including the terms and conditions 
     incorporated by reference in any such agreement, which is an 
     interest rate swap, option, future, or forward agreement, 
     including a rate floor, rate cap, rate collar, cross-currency 
     rate swap, and basis swap; a spot, same day-tomorrow, 
     tomorrow-next, forward, or other foreign exchange, precious 
     metals or other commodity agreement; a currency swap, option, 
     future, or forward agreement; an equity index or equity swap, 
     option, future, or forward agreement; a debt index or debt 
     swap, option, future, or forward agreement; a total return, 
     credit spread or credit swap, option, future, or forward 
     agreement; a commodity index or commodity swap, option, 
     future, or forward agreement; or a weather swap option, 
     future, or forward agreement; an emissions swap, option, 
     future, or forward agreement; or an inflation swap, option, 
     future, or forward agreement;
       ``(II) any agreement or transaction that is similar to any 
     other agreement or transaction referred to in this clause and 
     that is of a type that has been, is presently, or in the 
     future becomes, the subject of recurrent dealings in the swap 
     or other derivatives markets (including terms and conditions 
     incorporated by reference in such agreement) and that is a 
     forward, swap, future, option or spot transaction on one or 
     more rates, currencies, commodities, equity securities or 
     other equity instruments, debt securities or other debt 
     instruments, quantitative measures associated with an 
     occurrence, extent of an occurrence, or contingency 
     associated with a financial, commercial, or economic 
     consequence, or economic or financial indices or measures of 
     economic or financial risk or value;
       ``(III) any combination of agreements or transactions 
     referred to in this clause;
       ``(IV) any option to enter into any agreement or 
     transaction referred to in this clause;
       ``(V) a master agreement that provides for an agreement or 
     transaction referred to in subclause (I), (II), (III), or 
     (IV), together with all supplements to any such master 
     agreement, without regard to whether the master agreement 
     contains an agreement or transaction that is not a swap 
     agreement under this clause, except that the master agreement 
     shall be considered to be a swap agreement under this clause 
     only with respect to each agreement or transaction under the 
     master agreement that is referred to in subclause (I), (II), 
     (III), or (IV); and

[[Page 3533]]

       ``(VI) any security agreement or arrangement or other 
     credit enhancement related to any agreements or transactions 
     referred to in subclause (I), (II), (III), (IV), or (V), 
     including any guarantee or reimbursement obligation in 
     connection with any agreement or transaction referred to in 
     any such subclause.

     Such term is applicable for purposes of this subsection only 
     and shall not be construed or applied so as to challenge or 
     affect the characterization, definition, or treatment of any 
     swap agreement under any other statute, regulation, or rule, 
     including 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 Investment Company Act 
     of 1940, the Investment Advisers Act of 1940, the Securities 
     Investor Protection Act of 1970, the Commodity Exchange Act, 
     the Gramm-Leach-Bliley Act, and the Legal Certainty for Bank 
     Products Act of 2000.''.
       (2) Insured credit unions.--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 new clause:
       ``(vi) Swap agreement.--The term `swap agreement' means--

       ``(I) any agreement, including the terms and conditions 
     incorporated by reference in any such agreement, which is an 
     interest rate swap, option, future, or forward agreement, 
     including a rate floor, rate cap, rate collar, cross-currency 
     rate swap, and basis swap; a spot, same day-tomorrow, 
     tomorrow-next, forward, or other foreign exchange or precious 
     metals agreement; a currency swap, option, future, or forward 
     agreement; an equity index or equity swap, option, future, or 
     forward agreement; a debt index or debt swap, option, future, 
     or forward agreement; a total return, credit spread or credit 
     swap, option, future, or forward agreement; a commodity index 
     or commodity swap, option, future, or forward agreement; or a 
     weather swap, weather derivative, or weather option;
       ``(II) any agreement or transaction that is similar to any 
     other agreement or transaction referred to in this clause and 
     that is of a type that has been, is presently, or in the 
     future becomes, the subject of recurrent dealings in the swap 
     markets (including terms and conditions incorporated by 
     reference in such agreement) and that is a forward, 
     swap,future, or option on one or more rates, currencies, 
     commodities, equity securities or other equity instruments, 
     debt securities or other debt instruments, quantitative 
     measures associated with an occurrence, extent of an 
     occurrence, or contingency associated with a financial, 
     commercial, or economic consequence, or economic or financial 
     indices or measures of economic or financial risk or value;
       ``(III) any combination of agreements or transactions 
     referred to in this clause;
       ``(IV) any option to enter into any agreement or 
     transaction referred to in this clause;
       ``(V) a master agreement that provides for an agreement or 
     transaction referred to in subclause (I), (II), (III), or 
     (IV), together with all supplements to any such master 
     agreement, without regard to whether the master agreement 
     contains an agreement or transaction that is not a swap 
     agreement under this clause, except that the master agreement 
     shall be considered to be a swap agreement under this clause 
     only with respect to each agreement or transaction under the 
     master agreement that is referred to in subclause (I), (II), 
     (III), or (IV); and
       ``(VI) any security agreement or arrangement or other 
     credit enhancement related to any agreements or transactions 
     referred to in subclause (I), (II), (III), (IV), or (V), 
     including any guarantee or reimbursement obligation in 
     connection with any agreement or transaction referred to in 
     any such subclause.

     Such term is applicable for purposes of this subsection only 
     and shall not be construed or applied so as to challenge or 
     affect the characterization, definition, or treatment of any 
     swap agreement under any other statute, regulation, or rule, 
     including 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 Investment Company Act 
     of 1940, the Investment Advisers Act of 1940, the Securities 
     Investor Protection Act of 1970, the Commodity Exchange Act, 
     the Gramm-Leach-Bliley Act, and the Legal Certainty for Bank 
     Products Act of 2000.''.
       (g) Definition of Transfer.--
       (1) FDIC-insured depository institutions.--Section 
     11(e)(8)(D)(viii) of the Federal Deposit Insurance Act (12 
     U.S.C. 1821(e)(8)(D)(viii)) is amended to read as follows:
       ``(viii) Transfer.--The term `transfer' means every mode, 
     direct or indirect, absolute or conditional, voluntary or 
     involuntary, of disposing of or parting with property or with 
     an interest in property, including retention of title as a 
     security interest and foreclosure of the depository 
     institution's equity of redemption.''.
       (2) Insured credit unions.--Section 207(c)(8)(D) of the 
     Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)) (as 
     amended by subsection (f) of this section) is amended by 
     adding at the end the following new clause:
       ``(viii) Transfer.--The term `transfer' means every mode, 
     direct or indirect, absolute or conditional, voluntary or 
     involuntary, of disposing of or parting with property or with 
     an interest in property, including retention of title as a 
     security interest and foreclosure of the depository 
     institution's equity of redemption.''.
       (h) Treatment of Qualified Financial Contracts.--
       (1) FDIC-insured depository institutions.--Section 11(e)(8) 
     of the Federal Deposit Insurance Act (12 U.S.C. 1821(e)(8)) 
     is amended--
       (A) in subparagraph (A)--
       (i) by striking ``paragraph (10)'' and inserting 
     ``paragraphs (9) and (10)'';
       (ii) in clause (i), by striking ``to cause the termination 
     or liquidation'' and inserting ``such person has to cause the 
     termination, liquidation, or acceleration''; and
       (iii) by striking clause (ii) and inserting the following 
     new clause:
       ``(ii) any right under any security agreement or 
     arrangement or other credit enhancement related to one or 
     more qualified financial contracts described in clause 
     (i);''; and
       (B) in subparagraph (E), by striking clause (ii) and 
     inserting the following:
       ``(ii) any right under any security agreement or 
     arrangement or other credit enhancement related to one or 
     more qualified financial contracts described in clause 
     (i);''.
       (2) Insured credit unions.--Section 207(c)(8) of the 
     Federal Credit Union Act (12 U.S.C. 1787(c)(8)) is amended--
       (A) in subparagraph (A)--
       (i) by striking ``paragraph (12)'' and inserting 
     ``paragraphs (9) and (10)'';
       (ii) in clause (i), by striking ``to cause the termination 
     or liquidation'' and inserting ``such person has to cause the 
     termination, liquidation, or acceleration''; and
       (iii) by striking clause (ii) and inserting the following 
     new clause:
       ``(ii) any right under any security agreement or 
     arrangement or other credit enhancement related to 1 or more 
     qualified financial contracts described in clause (i);''; and
       (B) in subparagraph (E), by striking clause (ii) and 
     inserting the following new clause:
       ``(ii) any right under any security agreement or 
     arrangement or other credit enhancement related to 1 or more 
     qualified financial contracts described in clause (i);''.
       (i) Avoidance of Transfers.--
       (1) FDIC-insured depository institutions.--Section 
     11(e)(8)(C)(i) of the Federal Deposit Insurance Act (12 
     U.S.C. 1821(e)(8)(C)(i)) is amended by inserting ``section 
     5242 of the Revised Statutes of the United States or any 
     other Federal or State law relating to the avoidance of 
     preferential or fraudulent transfers,'' before ``the 
     Corporation''.
       (2) Insured credit unions.--Section 207(c)(8)(C)(i) of the 
     Federal Credit Union Act (12 U.S.C. 1787(c)(8)(C)(i)) is 
     amended by inserting ``section 5242 of the Revised Statutes 
     of the United States or any other Federal or State law 
     relating to the avoidance of preferential or fraudulent 
     transfers,'' before ``the Board''.

     SEC. 902. AUTHORITY OF THE FDIC AND NCUAB WITH RESPECT TO 
                   FAILED AND FAILING INSTITUTIONS.

       (a) Federal Deposit Insurance Corporation.--
       (1) In general.--Section 11(e)(8) of the Federal Deposit 
     Insurance Act (12 U.S.C. 1821(e)(8)) is amended--
       (A) in subparagraph (E), by striking ``other than paragraph 
     (12) of this subsection, subsection (d)(9)'' and inserting 
     ``other than subsections (d)(9) and (e)(10)''; and
       (B) by adding at the end the following new subparagraphs:
       ``(F) Clarification.--No provision of law shall be 
     construed as limiting the right or power of the Corporation, 
     or authorizing any court or agency to limit or delay, in any 
     manner, the right or power of the Corporation to transfer any 
     qualified financial contract in accordance with paragraphs 
     (9) and (10) of this subsection or to disaffirm or repudiate 
     any such contract in accordance with subsection (e)(1) of 
     this section.
       ``(G) Walkaway clauses not effective.--
       ``(i) In general.--Notwithstanding the provisions of 
     subparagraphs (A) and (E), and sections 403 and 404 of the 
     Federal Deposit Insurance Corporation Improvement Act of 
     1991, no walkaway clause shall be enforceable in a qualified 
     financial contract of an insured depository institution in 
     default.
       ``(ii) Walkaway clause defined.--For purposes of this 
     subparagraph, the term `walkaway clause' means a provision in 
     a qualified financial contract that, after calculation of a 
     value of a party's position or an amount due to or from 1 of 
     the parties in accordance with its terms upon termination, 
     liquidation, or acceleration of the qualified financial 
     contract, either does not create a payment obligation of a 
     party or extinguishes a payment obligation of a party in 
     whole or in part solely because of such party's status as a 
     nondefaulting party.''.
       (2) Technical and conforming amendment.--Section 
     11(e)(12)(A) of the Federal Deposit Insurance Act (12 U.S.C. 
     1821(e)(12)(A)) is amended by inserting ``or the exercise of 
     rights or powers by'' after ``the appointment of''.

[[Page 3534]]

       (b) National Credit Union Administration Board.--
       (1) In general.--Section 207(c)(8) of the Federal Credit 
     Union Act (12 U.S.C. 1787(c)(8)) is amended--
       (A) in subparagraph (E) (as amended by section 901(h)), by 
     striking ``other than paragraph (12) of this subsection, 
     subsection (b)(9)'' and inserting ``other than subsections 
     (b)(9) and (c)(10)''; and
       (B) by adding at the end the following new subparagraphs:
       ``(F) Clarification.--No provision of law shall be 
     construed as limiting the right or power of the Board, or 
     authorizing any court or agency to limit or delay, in any 
     manner, the right or power of the Board to transfer any 
     qualified financial contract in accordance with paragraphs 
     (9) and (10) of this subsection or to disaffirm or repudiate 
     any such contract in accordance with subsection (c)(1) of 
     this section.
       ``(G) Walkaway clauses not effective.--
       ``(i) In general.--Notwithstanding the provisions of 
     subparagraphs (A) and (E), and sections 403 and 404 of the 
     Federal Deposit Insurance Corporation Improvement Act of 
     1991, no walkaway clause shall be enforceable in a qualified 
     financial contract of an insured credit union in default.
       ``(ii) Walkaway clause defined.--For purposes of this 
     subparagraph, the term `walkaway clause' means a provision in 
     a qualified financial contract that, after calculation of a 
     value of a party's position or an amount due to or from 1 of 
     the parties in accordance with its terms upon termination, 
     liquidation, or acceleration of the qualified financial 
     contract, either does not create a payment obligation of a 
     party or extinguishes a payment obligation of a party in 
     whole or in part solely because of such party's status as a 
     nondefaulting party.''.
       (2) Technical and conforming amendment.--Section 
     207(c)(12)(A) of the Federal Credit Union Act (12 U.S.C. 
     1787(c)(12)(A)) is amended by inserting ``or the exercise of 
     rights or powers by'' after ``the appointment of''.

     SEC. 903. AMENDMENTS RELATING TO TRANSFERS OF QUALIFIED 
                   FINANCIAL CONTRACTS.

       (a) FDIC-Insured Depository Institutions.--
       (1) Transfers of Qualified Financial Contracts to Financial 
     Institutions.--Section 11(e)(9) of the Federal Deposit 
     Insurance Act (12 U.S.C. 1821(e)(9)) is amended to read as 
     follows:
       ``(9) Transfer of qualified financial contracts.--
       ``(A) In general.--In making any transfer of assets or 
     liabilities of a depository institution in default which 
     includes any qualified financial contract, the conservator or 
     receiver for such depository institution shall either--
       ``(i) transfer to one financial institution, other than a 
     financial institution for which a conservator, receiver, 
     trustee in bankruptcy, or other legal custodian has been 
     appointed or which is otherwise the subject of a bankruptcy 
     or insolvency proceeding--

       ``(I) all qualified financial contracts between any person 
     or any affiliate of such person and the depository 
     institution in default;
       ``(II) all claims of such person or any affiliate of such 
     person against such depository institution under any such 
     contract (other than any claim which, under the terms of any 
     such contract, is subordinated to the claims of general 
     unsecured creditors of such institution);
       ``(III) all claims of such depository institution against 
     such person or any affiliate of such person under any such 
     contract; and
       ``(IV) all property securing or any other credit 
     enhancement for any contract described in subclause (I) or 
     any claim described in subclause (II) or (III) under any such 
     contract; or

       ``(ii) transfer none of the qualified financial contracts, 
     claims, property or other credit enhancement referred to in 
     clause (i) (with respect to such person and any affiliate of 
     such person).
       ``(B) Transfer to foreign bank, foreign financial 
     institution, or branch or agency of a foreign bank or 
     financial institution.--In transferring any qualified 
     financial contracts and related claims and property under 
     subparagraph (A)(i), the conservator or receiver for the 
     depository institution shall not make such transfer to a 
     foreign bank, financial institution organized under the laws 
     of a foreign country, or a branch or agency of a foreign bank 
     or financial institution unless, under the law applicable to 
     such bank, financial institution, branch or agency, to the 
     qualified financial contracts, and to any netting contract, 
     any security agreement or arrangement or other credit 
     enhancement related to one or more qualified financial 
     contracts, the contractual rights of the parties to such 
     qualified financial contracts, netting contracts, security 
     agreements or arrangements, or other credit enhancements are 
     enforceable substantially to the same extent as permitted 
     under this section.
       ``(C) Transfer of contracts subject to the rules of a 
     clearing organization.--In the event that a conservator or 
     receiver transfers any qualified financial contract and 
     related claims, property, and credit enhancements pursuant to 
     subparagraph (A)(i) and such contract is cleared by or 
     subject to the rules of a clearing organization, the clearing 
     organization shall not be required to accept the transferee 
     as a member by virtue of the transfer.
       ``(D) Definitions.--For purposes of this paragraph, the 
     term `financial institution' means a broker or dealer, a 
     depository institution, a futures commission merchant, or any 
     other institution, as determined by the Corporation by 
     regulation to be a financial institution, and the term 
     `clearing organization' has the same meaning as in section 
     402 of the Federal Deposit Insurance Corporation Improvement 
     Act of 1991.''.
       (2) Notice to qualified financial contract 
     counterparties.--Section 11(e)(10)(A) of the Federal Deposit 
     Insurance Act (12 U.S.C. 1821(e)(10)(A)) is amended in the 
     material immediately following clause (ii) by striking ``the 
     conservator'' and all that follows through the period and 
     inserting the following: ``the conservator or receiver shall 
     notify any person who is a party to any such contract of such 
     transfer by 5:00 p.m. (eastern time) on the business day 
     following the date of the appointment of the receiver in the 
     case of a receivership, or the business day following such 
     transfer in the case of a conservatorship.''.
       (3) Rights against receiver and conservator and treatment 
     of bridge banks.--Section 11(e)(10) of the Federal Deposit 
     Insurance Act (12 U.S.C. 1821(e)(10)) is amended--
       (A) by redesignating subparagraph (B) as subparagraph (D); 
     and
       (B) by inserting after subparagraph (A) the following new 
     subparagraphs:
       ``(B) Certain rights not enforceable.--
       ``(i) Receivership.--A person who is a party to a qualified 
     financial contract with an insured depository institution may 
     not exercise any right that such person has to terminate, 
     liquidate, or net such contract under paragraph (8)(A) of 
     this subsection or section 403 or 404 of the Federal Deposit 
     Insurance Corporation Improvement Act of 1991, solely by 
     reason of or incidental to the appointment of a receiver for 
     the depository institution (or the insolvency or financial 
     condition of the depository institution for which the 
     receiver has been appointed)--

       ``(I) until 5:00 p.m. (eastern time) on the business day 
     following the date of the appointment of the receiver; or
       ``(II) after the person has received notice that the 
     contract has been transferred pursuant to paragraph (9)(A).

       ``(ii) Conservatorship.--A person who is a party to a 
     qualified financial contract with an insured depository 
     institution may not exercise any right that such person has 
     to terminate, liquidate, or net such contract under paragraph 
     (8)(E) of this subsection or section 403 or 404 of the 
     Federal Deposit Insurance Corporation Improvement Act of 
     1991, solely by reason of or incidental to the appointment of 
     a conservator for the depository institution (or the 
     insolvency or financial condition of the depository 
     institution for which the conservator has been appointed).
       ``(iii) Notice.--For purposes of this paragraph, the 
     Corporation as receiver or conservator of an insured 
     depository institution shall be deemed to have notified a 
     person who is a party to a qualified financial contract with 
     such depository institution if the Corporation has taken 
     steps reasonably calculated to provide notice to such person 
     by the time specified in subparagraph (A).
       ``(C) Treatment of bridge banks.--The following 
     institutions shall not be considered to be a financial 
     institution for which a conservator, receiver, trustee in 
     bankruptcy, or other legal custodian has been appointed or 
     which is otherwise the subject of a bankruptcy or insolvency 
     proceeding for purposes of paragraph (9):
       ``(i) A bridge bank.
       ``(ii) A depository institution organized by the 
     Corporation, for which a conservator is appointed either--

       ``(I) immediately upon the organization of the institution; 
     or
       ``(II) at the time of a purchase and assumption transaction 
     between the depository institution and the Corporation as 
     receiver for a depository institution in default.''.

       (b) Insured Credit Unions.--
       (1) Transfers of qualified financial contracts to financial 
     institutions.--Section 207(c)(9) of the Federal Credit Union 
     Act (12 U.S.C. 1787(c)(9)) is amended to read as follows:
       ``(9) Transfer of qualified financial contracts.--
       ``(A) In general.--In making any transfer of assets or 
     liabilities of a credit union in default which includes any 
     qualified financial contract, the conservator or liquidating 
     agent for such credit union shall either--
       ``(i) transfer to 1 financial institution, other than a 
     financial institution for which a conservator, receiver, 
     trustee in bankruptcy, or other legal custodian has been 
     appointed or which is otherwise the subject of a bankruptcy 
     or insolvency proceeding--

       ``(I) all qualified financial contracts between any person 
     or any affiliate of such person and the credit union in 
     default;
       ``(II) all claims of such person or any affiliate of such 
     person against such credit union under any such contract 
     (other than any claim which, under the terms of any such

[[Page 3535]]

     contract, is subordinated to the claims of general unsecured 
     creditors of such credit union);
       ``(III) all claims of such credit union against such person 
     or any affiliate of such person under any such contract; and
       ``(IV) all property securing or any other credit 
     enhancement for any contract described in subclause (I) or 
     any claim described in subclause (II) or (III) under any such 
     contract; or

       ``(ii) transfer none of the qualified financial contracts, 
     claims, property or other credit enhancement referred to in 
     clause (i) (with respect to such person and any affiliate of 
     such person).
       ``(B) Transfer to foreign bank, foreign financial 
     institution, or branch or agency of a foreign bank or 
     financial institution.--In transferring any qualified 
     financial contracts and related claims and property under 
     subparagraph (A)(i), the conservator or liquidating agent for 
     the credit union shall not make such transfer to a foreign 
     bank, financial institution organized under the laws of a 
     foreign country, or a branch or agency of a foreign bank or 
     financial institution unless, under the law applicable to 
     such bank, financial institution, branch or agency, to the 
     qualified financial contracts, and to any netting contract, 
     any security agreement or arrangement or other credit 
     enhancement related to 1 or more qualified financial 
     contracts, the contractual rights of the parties to such 
     qualified financial contracts, netting contracts, security 
     agreements or arrangements, or other credit enhancements are 
     enforceable substantially to the same extent as permitted 
     under this section.
       ``(C) Transfer of contracts subject to the rules of a 
     clearing organization.--In the event that a conservator or 
     liquidating agent transfers any qualified financial contract 
     and related claims, property, and credit enhancements 
     pursuant to subparagraph (A)(i) and such contract is cleared 
     by or subject to the rules of a clearing organization, the 
     clearing organization shall not be required to accept the 
     transferee as a member by virtue of the transfer.
       ``(D) Definitions.--For purposes of this paragraph--
       ``(i) the term `financial institution' means a broker or 
     dealer, a depository institution, a futures commission 
     merchant, a credit union, or any other institution, as 
     determined by the Board by regulation to be a financial 
     institution; and
       ``(ii) the term `clearing organization' has the same 
     meaning as in section 402 of the Federal Deposit Insurance 
     Corporation Improvement Act of 1991.''.
       (2) Notice to qualified financial contract 
     counterparties.--Section 207(c)(10)(A) of the Federal Credit 
     Union Act (12 U.S.C. 1787(c)(10)(A)) is amended in the 
     material immediately following clause (ii) by striking ``the 
     conservator'' and all that follows through the period and 
     inserting the following: ``the conservator or liquidating 
     agent shall notify any person who is a party to any such 
     contract of such transfer by 5:00 p.m. (eastern time) on the 
     business day following the date of the appointment of the 
     liquidating agent in the case of a liquidation, or the 
     business day following such transfer in the case of a 
     conservatorship.''.
       (3) Rights against liquidating agent and conservator and 
     treatment of bridge banks.--Section 207(c)(10) of the Federal 
     Credit Union Act (12 U.S.C. 1787(c)(10)) is amended--
       (A) by redesignating subparagraph (B) as subparagraph (D); 
     and
       (B) by inserting after subparagraph (A) the following new 
     subparagraphs:
       ``(B) Certain rights not enforceable.--
       ``(i) Liquidation.--A person who is a party to a qualified 
     financial contract with an insured credit union may not 
     exercise any right that such person has to terminate, 
     liquidate, or net such contract under paragraph (8)(A) of 
     this subsection or section 403 or 404 of the Federal Deposit 
     Insurance Corporation Improvement Act of 1991, solely by 
     reason of or incidental to the appointment of a liquidating 
     agent for the credit union institution (or the insolvency or 
     financial condition of the credit union for which the 
     liquidating agent has been appointed)--

       ``(I) until 5:00 p.m. (eastern time) on the business day 
     following the date of the appointment of the liquidating 
     agent; or
       ``(II) after the person has received notice that the 
     contract has been transferred pursuant to paragraph (9)(A).

       ``(ii) Conservatorship.--A person who is a party to a 
     qualified financial contract with an insured credit union may 
     not exercise any right that such person has to terminate, 
     liquidate, or net such contract under paragraph (8)(E) of 
     this subsection or section 403 or 404 of the Federal Deposit 
     Insurance Corporation Improvement Act of 1991, solely by 
     reason of or incidental to the appointment of a conservator 
     for the credit union or the insolvency or financial condition 
     of the credit union for which the conservator has been 
     appointed).
       ``(iii) Notice.--For purposes of this paragraph, the Board 
     as conservator or liquidating agent of an insured credit 
     union shall be deemed to have notified a person who is a 
     party to a qualified financial contract with such credit 
     union if the Board has taken steps reasonably calculated to 
     provide notice to such person by the time specified in 
     subparagraph (A).
       ``(C) Treatment of bridge banks.--The following 
     institutions shall not be considered to be a financial 
     institution for which a conservator, receiver, trustee in 
     bankruptcy, or other legal custodian has been appointed or 
     which is otherwise the subject of a bankruptcy or insolvency 
     proceeding for purposes of paragraph (9):
       ``(i) A bridge bank.
       ``(ii) A credit union organized by the Board, for which a 
     conservator is appointed either--

       ``(I) immediately upon the organization of the credit 
     union; or
       ``(II) at the time of a purchase and assumption transaction 
     between the credit union and the Board as receiver for a 
     credit union in default.''.

     SEC. 904. AMENDMENTS RELATING TO DISAFFIRMANCE OR REPUDIATION 
                   OF QUALIFIED FINANCIAL CONTRACTS.

       (a) FDIC-Insured Depository Institutions.--Section 11(e) of 
     the Federal Deposit Insurance Act (12 U.S.C. 1821(e)) is 
     amended--
       (1) by redesignating paragraphs (11) through (15) as 
     paragraphs (12) through (16), respectively;
       (2) by inserting after paragraph (10) the following new 
     paragraph:
       ``(11) Disaffirmance or repudiation of qualified financial 
     contracts.--In exercising the rights of disaffirmance or 
     repudiation of a conservator or receiver with respect to any 
     qualified financial contract to which an insured depository 
     institution is a party, the conservator or receiver for such 
     institution shall either--
       ``(A) disaffirm or repudiate all qualified financial 
     contracts between--
       ``(i) any person or any affiliate of such person; and
       ``(ii) the depository institution in default; or
       ``(B) disaffirm or repudiate none of the qualified 
     financial contracts referred to in subparagraph (A) (with 
     respect to such person or any affiliate of such person).''; 
     and
       (3) by adding at the end the following new paragraph:
       ``(17) Savings clause.--The meanings of terms used in this 
     subsection are applicable for purposes of this subsection 
     only, and shall not be construed or applied so as to 
     challenge or affect the characterization, 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 that term is defined in section 3(a)(47) 
     of the Securities Exchange Act of 1934), and the Commodity 
     Exchange Act.''.
       (b) Insured Credit Unions.--Section 207(c) of the Federal 
     Credit Union Act (12 U.S.C. 1787(c)) is amended--
       (1) by redesignating paragraphs (11), (12), and (13) as 
     paragraphs (12), (13), and (14), respectively;
       (2) by inserting after paragraph (10) the following new 
     paragraph:
       ``(11) Disaffirmance or repudiation of qualified financial 
     contracts.--In exercising the rights of disaffirmance or 
     repudiation of a conservator or liquidating agent with 
     respect to any qualified financial contract to which an 
     insured credit union is a party, the conservator or 
     liquidating agent for such credit union shall either--
       ``(A) disaffirm or repudiate all qualified financial 
     contracts between--
       ``(i) any person or any affiliate of such person; and
       ``(ii) the credit union in default; or
       ``(B) disaffirm or repudiate none of the qualified 
     financial contracts referred to in subparagraph (A) (with 
     respect to such person or any affiliate of such person).''; 
     and
       (3) by adding at the end the following new paragraph:
       ``(15) Savings clause.--The meanings of terms used in this 
     subsection are applicable for purposes of this subsection 
     only, and shall not be construed or applied so as to 
     challenge or affect the characterization, 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 that term is defined in section (a)(47) 
     of the Securities Exchange Act of 1934), and the Commodity 
     Exchange Act.''.

     SEC. 905. CLARIFYING AMENDMENT RELATING TO MASTER AGREEMENTS 
                   AND DEFINITION OF PERSON.

       (a) FDIC-Insured Depository Institutions.--
       (1) Master Agreement.--Section 11(e)(8)(D)(vii) of the 
     Federal Deposit Insurance Act (12 U.S.C. 1821(e)(8)(D)(vii)) 
     is amended to read as follows:
       ``(vii) Treatment of master agreement as one agreement.--
     Any master agreement for any contract or agreement described 
     in any preceding clause of this subparagraph (or any master 
     agreement for such master agreement or agreements), together 
     with all supplements to such master agreement, shall be 
     treated as a single agreement and a single qualified 
     financial contract. If a master agreement contains provisions 
     relating to agreements or transactions that are not 
     themselves qualified financial contracts, the

[[Page 3536]]

     master agreement shall be deemed to be a qualified financial 
     contract only with respect to those transactions that are 
     themselves qualified financial contracts.''.
       (2) 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) For purposes of this subsection, `person' shall 
     include any governmental entity and any entity set forth in 
     the definition of `person' in section of title 1, United 
     States Code.''.
       (b) Insured Credit Unions.--Section 207(c)(8)(D) of the 
     Federal Credit Union Act (12 U.S.C. 1787(c)(8)(D)) is amended 
     by inserting after clause (vi) (as added by section 901(f)) 
     the following new clause:
       ``(vii) Treatment of master agreement as one agreement.--
     Any master agreement for any contract or agreement described 
     in any preceding clause of this subparagraph (or any master 
     agreement for such master agreement or agreements), together 
     with all supplements to such master agreement, shall be 
     treated as a single agreement and a single qualified 
     financial contract. If a master agreement contains provisions 
     relating to agreements or transactions that are not 
     themselves qualified financial contracts, the master 
     agreement shall be deemed to be a qualified financial 
     contract only with respect to those transactions that are 
     themselves qualified financial contracts.''.

     SEC. 906. FEDERAL DEPOSIT INSURANCE CORPORATION IMPROVEMENT 
                   ACT OF 1991.

       (a) Definitions.--Section 402 of the Federal Deposit 
     Insurance Corporation Improvement Act of 1991 (12 U.S.C. 
     4402) is amended--
       (1) in paragraph (2)--
       (A) in subparagraph (A)(ii), by inserting before the 
     semicolon ``, or is exempt from such registration by order of 
     the Securities and Exchange Commission''; and
       (B) in subparagraph (B), by inserting before the period ``, 
     that has been granted an exemption under section 4(c)(1) of 
     the Commodity Exchange Act, or that is a multilateral 
     clearing organization (as defined in section 408 of this 
     Act)'';
       (2) in paragraph (6)--
       (A) by redesignating subparagraphs (B) through (D) as 
     subparagraphs (C) through (E), respectively;
       (B) by inserting after subparagraph (A) the following new 
     subparagraph:
       ``(B) an uninsured national bank or an uninsured State bank 
     that is a member of the Federal Reserve System, if the 
     national bank or State member bank is not eligible to make 
     application to become an insured bank under section 5 of the 
     Federal Deposit Insurance Act;''; and
       (C) by amending subparagraph (C), so redesignated, to read 
     as follows:
       ``(C) a branch or agency of a foreign bank, a foreign bank 
     and any branch or agency of the foreign bank, or the foreign 
     bank that established the branch or agency, as those terms 
     are defined in section 1(b) of the International Banking Act 
     of 1978;'';
       (3) in paragraph (11), by inserting before the period ``and 
     any other clearing organization with which such clearing 
     organization has a netting contract'';
       (4) by amending paragraph (14)(A)(i) to read as follows:
       ``(i) means a contract or agreement between 2 or more 
     financial institutions, clearing organizations, or members 
     that provides for netting present or future payment 
     obligations or payment entitlements (including liquidation or 
     close out values relating to such obligations or 
     entitlements) among the parties to the agreement; and''; and
       (5) by adding at the end the following new paragraph:
       ``(15) Payment.--The term `payment' means a payment of 
     United States dollars, another currency, or a composite 
     currency, and a noncash delivery, including a payment or 
     delivery to liquidate an unmatured obligation.''.
       (b) Enforceability of Bilateral Netting Contracts.--Section 
     403 of the Federal Deposit Insurance Corporation Improvement 
     Act of 1991 (12 U.S.C. 4403) is amended--
       (1) by striking subsection (a) and inserting the following:
       ``(a) General Rule.--Notwithstanding any other provision of 
     State or Federal law (other than section 11(e) of the Federal 
     Deposit Insurance Act, paragraphs (8)(E), (8)(F), and (10)(B) 
     of section 207(c) of the Federal Credit Union Act, or any 
     order authorized under section 5(b)(2) of the Securities 
     Investor Protection Act of 1970), the covered contractual 
     payment obligations and the covered contractual payment 
     entitlements between any 2 financial institutions shall be 
     terminated, liquidated, accelerated, and netted in accordance 
     with, and subject to the conditions of, the terms of any 
     applicable netting contract (except as provided in section 
     561(b)(2) of title 11, United States Code).''; and
       (2) by adding at the end the following new subsection:
       ``(f) Enforceability of Security Agreements.--The 
     provisions of any security agreement or arrangement or other 
     credit enhancement related to one or more netting contracts 
     between any 2 financial institutions shall be enforceable in 
     accordance with their terms (except as provided in section 
     561(b)(2) of title 11, United States Code), and shall not be 
     stayed, avoided, or otherwise limited by any State or Federal 
     law (other than paragraphs (8)(E), (8)(F), and (10)(B) of 
     section 11(e) of the Federal Deposit Insurance Act, 
     paragraphs (8)(E), (8)(F), and (10)(B) of section 207(c) of 
     the Federal Credit Union Act, and section 5(b)(2) of the 
     Securities Investor Protection Act of 1970).''.
       (c) Enforceability of Clearing Organization Netting 
     Contracts.--Section 404 of the Federal Deposit Insurance 
     Corporation Improvement Act of 1991 (12 U.S.C. 4404) is 
     amended--
       (1) by striking subsection (a) and inserting the following:
       ``(a) General Rule.--Notwithstanding any other provision of 
     State or Federal law (other than section 11(e) of the Federal 
     Deposit Insurance Act, paragraphs (8)(E), (8)(F), and (10)(B) 
     of section 207(c) of the Federal Credit Union Act, and any 
     order authorized under section 5(b)(2) of the Securities 
     Investor Protection Act of 1970), the covered contractual 
     payment obligations and the covered contractual payment 
     entitlements of a member of a clearing organization to and 
     from all other members of a clearing organization shall be 
     terminated, liquidated, accelerated, and netted in accordance 
     with and subject to the conditions of any applicable netting 
     contract (except as provided in section 561(b)(2) of title 
     11, United States Code).''; and
       (2) by adding at the end the following new subsection:
       ``(h) Enforceability of Security Agreements.--The 
     provisions of any security agreement or arrangement or other 
     credit enhancement related to one or more netting contracts 
     between any 2 members of a clearing organization shall be 
     enforceable in accordance with their terms (except as 
     provided in section 561(b)(2) of title 11, United States 
     Code), and shall not be stayed, avoided, or otherwise limited 
     by any State or Federal law (other than paragraphs (8)(E), 
     (8)(F), and (10)(B) of section 11(e) of the Federal Deposit 
     Insurance Act, paragraphs (8)(E), (8)(F), and (10)(B) of 
     section 207(c) of the Federal Credit Union Act, and section 
     5(b)(2) of the Securities Investor Protection Act of 
     1970).''.
       (d) Enforceability of Contracts With Uninsured National 
     Banks, Uninsured Federal Branches and Agencies, Certain 
     Uninsured State Member Banks, and Edge Act Corporations.--The 
     Federal Deposit Insurance Corporation Improvement Act of 1991 
     (12 U.S.C. 4401 et seq.) is amended--
       (1) by redesignating section 407 as section 407A; and
       (2) by inserting after section 406 the following new 
     section:

     ``SEC. 407. TREATMENT OF CONTRACTS WITH UNINSURED NATIONAL 
                   BANKS, UNINSURED FEDERAL BRANCHES AND AGENCIES, 
                   CERTAIN UNINSURED STATE MEMBER BANKS, AND EDGE 
                   ACT CORPORATIONS.

       ``(a) In General.--Notwithstanding any other provision of 
     law, paragraphs (8), (9), (10), and (11) of section 11(e) of 
     the Federal Deposit Insurance Act shall apply to an uninsured 
     national bank or uninsured Federal branch or Federal agency, 
     a corporation chartered under section 25A of the Federal 
     Reserve Act, or an uninsured State member bank which 
     operates, or operates as, a multilateral clearing 
     organization pursuant to section 409 of this Act, except that 
     for such purpose--
       ``(1) any reference to the `Corporation as receiver' or 
     `the receiver or the Corporation' shall refer to the receiver 
     appointed by the Comptroller of the Currency in the case of 
     an uninsured national bank or uninsured Federal branch or 
     agency, or to the receiver appointed by the Board of 
     Governors of the Federal Reserve System in the case of a 
     corporation chartered under section 25A of the Federal 
     Reserve Act or an uninsured State member bank;
       ``(2) any reference to the `Corporation' (other than in 
     section 11(e)(8)(D) of such Act), the `Corporation, whether 
     acting as such or as conservator or receiver', a `receiver', 
     or a `conservator' shall refer to the receiver or conservator 
     appointed by the Comptroller of the Currency in the case of 
     an uninsured national bank or uninsured Federal branch or 
     agency, or to the receiver or conservator appointed by the 
     Board of Governors of the Federal Reserve System in the case 
     of a corporation chartered under section 25A of the Federal 
     Reserve Act or an uninsured State member bank; and
       ``(3) any reference to an `insured depository institution' 
     or `depository institution' shall refer to an uninsured 
     national bank, an uninsured Federal branch or Federal agency, 
     a corporation chartered under section 25A of the Federal 
     Reserve Act, or an uninsured State member bank which 
     operates, or operates as, a multilateral clearing 
     organization pursuant to section 409 of this Act.
       ``(b) Liability.--The liability of a receiver or 
     conservator of an uninsured national bank, uninsured Federal 
     branch or agency, a corporation chartered under section 25A 
     of the Federal Reserve Act, or an uninsured State member bank 
     which operates, or operates as, a multilateral clearing 
     organization pursuant to section 409 of this Act, shall be 
     determined in the same manner and subject to the same 
     limitations that apply to receivers and conservators of 
     insured depository institutions under section 11(e) of the 
     Federal Deposit Insurance Act.

[[Page 3537]]

       ``(c) Regulatory Authority.--
       ``(1) In general.--The Comptroller of the Currency in the 
     case of an uninsured national bank or uninsured Federal 
     branch or agency and the Board of Governors of the Federal 
     Reserve System in the case of a corporation chartered under 
     section 25A of the Federal Reserve Act, or an uninsured State 
     member bank that operates, or operates as, a multilateral 
     clearing organization pursuant to section 409 of this Act, in 
     consultation with the Federal Deposit Insurance Corporation, 
     may each promulgate regulations solely to implement this 
     section.
       ``(2) Specific requirement.--In promulgating regulations, 
     limited solely to implementing paragraphs (8), (9), (10), and 
     (11) of section 11(e) of the Federal Deposit Insurance Act, 
     the Comptroller of the Currency and the Board of Governors of 
     the Federal Reserve System each shall ensure that the 
     regulations generally are consistent with the regulations and 
     policies of the Federal Deposit Insurance Corporation adopted 
     pursuant to the Federal Deposit Insurance Act.
       ``(d) Definitions.--For purposes of this section, the terms 
     `Federal branch', `Federal agency', and `foreign bank' have 
     the same meanings as in section 1(b) of the International 
     Banking Act of 1978.''.

     SEC. 907. BANKRUPTCY CODE AMENDMENTS.

       (a) Definitions of Forward Contract, Repurchase Agreement, 
     Securities Clearing Agency, Swap Agreement, Commodity 
     Contract, and Securities Contract.--Title 11, United States 
     Code, is amended--
       (1) in section 101--
       (A) in paragraph (25)--
       (i) by striking ``means a contract'' and inserting 
     ``means--
       ``(A) a contract'';
       (ii) by inserting ``as defined in section 761 of this 
     title'' after ``commodity contract'';
       (iii) by striking ``, or any combination thereof or option 
     thereon;'' and inserting ``, or any other similar 
     agreement;''; and
       (iv) by striking ``repurchase transaction, reverse 
     repurchase transaction,'' and inserting ``repurchase or 
     reverse repurchase transaction (whether or not such 
     repurchase or reverse repurchase transaction is a repurchase 
     agreement as defined in section 101)''; and
       (v) by adding at the end the following:
       ``(B) any combination of agreements or transactions 
     referred to in subparagraphs (A) and (C);
       ``(C) any option to enter into an agreement or transaction 
     referred to in subparagraph (A) or (B);
       ``(D) a master agreement that provides for an agreement or 
     transaction referred to in subparagraph (A), (B), or (C), 
     together with all supplements to any such master agreement, 
     without regard to whether such master agreement provides for 
     an agreement or transaction that is not a forward contract 
     under this paragraph, except that such master agreement shall 
     be considered to be a forward contract under this paragraph 
     only with respect to each agreement or transaction under such 
     master agreement that is referred to in subparagraph (A), 
     (B), or (C); or
       ``(E) any security agreement or arrangement, or other 
     credit enhancement related to any agreement or transaction 
     referred to in subparagraph (A), (B), (C), or (D), including 
     any guarantee or reimbursement obligation by or to a forward 
     contract merchant or financial participant in connection with 
     any agreement or transaction referred to in any such 
     subparagraph, but not to exceed the damages in connection 
     with any such agreement or transaction, measured in 
     accordance with section 562;'';
       (B) in paragraph (46), by striking ``on any day during the 
     period beginning 90 days before the date of'' and inserting 
     ``at any time before'';
       (C) by amending paragraph (47) to read as follows:
       ``(47) `repurchase agreement' (which definition also 
     applies to a reverse repurchase agreement)--
       ``(A) means--
       ``(i) an agreement, including related terms, which provides 
     for the transfer of one or more certificates of deposit, 
     mortgage related securities (as defined in section 3 of the 
     Securities Exchange Act of 1934), mortgage loans, interests 
     in mortgage related securities or mortgage loans, eligible 
     bankers' acceptances, qualified foreign government securities 
     (defined as a security that is a direct obligation of, or 
     that is fully guaranteed by, the central government of a 
     member of the Organization for Economic Cooperation and 
     Development), or securities that are direct obligations of, 
     or that are fully guaranteed by, the United States or any 
     agency of the United States against the transfer of funds by 
     the transferee of such certificates of deposit, eligible 
     bankers' acceptances, securities, mortgage loans, or 
     interests, with a simultaneous agreement by such transferee 
     to transfer to the transferor thereof certificates of 
     deposit, eligible bankers' acceptance, securities, mortgage 
     loans, or interests of the kind described in this clause, at 
     a date certain not later than 1 year after such transfer or 
     on demand, against the transfer of funds;
       ``(ii) any combination of agreements or transactions 
     referred to in clauses (i) and (iii);
       ``(iii) an option to enter into an agreement or transaction 
     referred to in clause (i) or (ii);
       ``(iv) a master agreement that provides for an agreement or 
     transaction referred to in clause (i), (ii), or (iii), 
     together with all supplements to any such master agreement, 
     without regard to whether such master agreement provides for 
     an agreement or transaction that is not a repurchase 
     agreement under this paragraph, except that such master 
     agreement shall be considered to be a repurchase agreement 
     under this paragraph only with respect to each agreement or 
     transaction under the master agreement that is referred to in 
     clause (i), (ii), or (iii); or
       ``(v) any security agreement or arrangement or other credit 
     enhancement related to any agreement or transaction referred 
     to in clause (i), (ii), (iii), or (iv), including any 
     guarantee or reimbursement obligation by or to a 
     repoparticipant or financial participant in connection with 
     any agreement or transaction referred to in any such clause, 
     but not to exceed the damages in connection with any such 
     agreement or transaction, measured in accordance with section 
     562 of this title; and
       ``(B) does not include a repurchase obligation under a 
     participation in a commercial mortgage loan;'';
       (D) in paragraph (48), by inserting ``, or exempt from such 
     registration under such section pursuant to an order of the 
     Securities and Exchange Commission,'' after ``1934''; and
       (E) by amending paragraph (53B) to read as follows:
       ``(53B) `swap agreement'--
       ``(A) means--
       ``(i) any agreement, including the terms and conditions 
     incorporated by reference in such agreement, which is--

       ``(I) an interest rate swap, option, future, or forward 
     agreement, including a rate floor, rate cap, rate collar, 
     cross-currency rate swap, and basis swap;
       ``(II) a spot, same day-tomorrow, tomorrow-next, forward, 
     or other foreign exchange, precious metals, or other 
     commodity agreement;
       ``(III) a currency swap, option, future, or forward 
     agreement;
       ``(IV) an equity index or equity swap, option, future, or 
     forward agreement;
       ``(V) a debt index or debt swap, option, future, or forward 
     agreement;
       ``(VI) a total return, credit spread or credit swap, 
     option, future, or forward agreement;
       ``(VII) a commodity index or a commodity swap, option, 
     future, or forward agreement; or
       ``(VIII) a weather swap, option, future, or forward 
     agreement;
       ``(IX) an emissions swap, option, future, or forward 
     agreement; or
       ``(X) an inflation swap, option, future, or forward 
     agreement;

       ``(ii) any agreement or transaction that is similar to any 
     other agreement or transaction referred to in this paragraph 
     and that--

       ``(I) is of a type that has been, is presently, or in the 
     future becomes, the subject of recurrent dealings in the swap 
     or other derivatives markets (including terms and conditions 
     incorporated by reference therein); and
       ``(II) is a forward, swap, future, option, or spot 
     transaction on one or more rates, currencies, commodities, 
     equity securities, or other equity instruments, debt 
     securities or other debt instruments, quantitative measures 
     associated with an occurrence, extent of an occurrence, or 
     contingency associated with a financial, commercial, or 
     economic consequence, or economic or financial indices or 
     measures of economic or financial risk or value;

       ``(iii) any combination of agreements or transactions 
     referred to in this subparagraph;
       ``(iv) any option to enter into an agreement or transaction 
     referred to in this subparagraph;
       ``(v) a master agreement that provides for an agreement or 
     transaction referred to in clause (i), (ii), (iii), or (iv), 
     together with all supplements to any such master agreement, 
     and without regard to whether the master agreement contains 
     an agreement or transaction that is not a swap agreement 
     under this paragraph, except that the master agreement shall 
     be considered to be a swap agreement under this paragraph 
     only with respect to each agreement or transaction under the 
     master agreement that is referred to in clause (i), (ii), 
     (iii), or (iv); or
       ``(vi) any security agreement or arrangement or other 
     credit enhancement related to any agreements or transactions 
     referred to in clause (i) through (v), including any 
     guarantee or reimbursement obligation by or to a swap 
     participant or financial participant in connection with any 
     agreement or transaction referred to in any such clause, but 
     not to exceed the damages in connection with any such 
     agreement or transaction, measured in accordance with section 
     562; and
       ``(B) is applicable for purposes of this title only, and 
     shall not be construed or applied so as to challenge or 
     affect the characterization, definition, or treatment of any 
     swap agreement under any other statute, regulation, or rule, 
     including 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 Investment Company Act 
     of 1940, the Investment Advisers Act of 1940, the Securities 
     Investor

[[Page 3538]]

     Protection Act of 1970, the Commodity Exchange Act, the 
     Gramm-Leach-Bliley Act, and the Legal Certainty for Bank 
     Products Act of 2000;'';
       (2) in section 741(7), by striking paragraph (7) and 
     inserting the following:
       ``(7) `securities contract'--
       ``(A) means--
       ``(i) a contract for the purchase, sale, or loan of a 
     security, a certificate of deposit, a mortgage loan, any 
     interest in a mortgage loan, a group or index of securities, 
     certificates of deposit, or mortgage loans or interests 
     therein (including an interest therein or based on the value 
     thereof), or option on any of the foregoing, including an 
     option to purchase or sell any such security, certificate of 
     deposit, mortgage loan, interest, group or index, or option, 
     and including any repurchase or reverse repurchase 
     transaction on any such security, certificate of deposit, 
     mortgage loan, interest, group or index, or option (whether 
     or not such repurchase or reverse repurchase transaction is a 
     ``repurchase agreement'' as defined in section 101);
       ``(ii) any option entered into on a national securities 
     exchange relating to foreign currencies;
       ``(iii) the guarantee (including by novation) by or to any 
     securities clearing agency of a settlement of cash, 
     securities, certificates of deposit, mortgage loans or 
     interests therein, group or index of securities, or mortgage 
     loans or interests therein (including any interest therein or 
     based on the value thereof), or option on any of the 
     foregoing, including an option to purchase or sell any such 
     security, certificate of deposit, mortgage loan, interest, 
     group or index, or option (whether or not such settlement is 
     in connection with any agreement or transaction referred to 
     in clause (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), 
     (ix), or (x));
       ``(iv) any margin loan;
       ``(v) any extension of credit for the clearance or 
     settlement of securities transactions;
       ``(vi) any collar/loan transaction related to securities, 
     prepaid forward transaction related to securities, or sale/
     total return swap transaction related to securities;
       ``(vii) any other agreement or transaction that is similar 
     to an agreement or transaction referred to in this 
     subparagraph;
       ``(viii) any combination of the agreements or transactions 
     referred to in this subparagraph;
       ``(ix) any option to enter into any agreement or 
     transaction referred to in this subparagraph;
       ``(x) a master agreement that provides for an agreement or 
     transaction referred to in clause (i), (ii), (iii), (iv), 
     (v), (vi), (vii), (viii), or (ix) together with all 
     supplements to any such master agreement, without regard to 
     whether the master agreement provides for an agreement or 
     transaction that is not a securities contract under this 
     subparagraph, except that such master agreement shall be 
     considered to be a securities contract under this 
     subparagraph only with respect to each agreement or 
     transaction under such master agreement that is referred to 
     in clause (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), 
     or (ix); or
       ``(xi) any security agreement or arrangement or other 
     credit enhancement related to any agreement or transaction 
     referred to in this subparagraph, including any guarantee or 
     reimbursement obligation by or to a stockbroker, securities 
     clearing agency, financial institution, or financial 
     participant in connection with any agreement or transaction 
     referred to in this subparagraph, but not to exceed the 
     damages in connection with any such agreement or transaction, 
     measured in accordance with section 562; and
       ``(B) does not include any purchase, sale, or repurchase 
     obligation under a participation in a commercial mortgage 
     loan;''; and
       (3) in section 761(4)--
       (A) by striking ``or'' at the end of subparagraph (D); and
       (B) by adding at the end the following:
       ``(F) any other agreement or transaction that is similar to 
     an agreement or transaction referred to in this paragraph;
       ``(G) any combination of the agreements or transactions 
     referred to in this paragraph;
       ``(H) any option to enter into an agreement or transaction 
     referred to in this paragraph;
       ``(I) a master agreement that provides for an agreement or 
     transaction referred to in subparagraph (A), (B), (C), (D), 
     (E), (F), (G), or (H), together with all supplements to such 
     master agreement, without regard to whether the master 
     agreement provides for an agreement or transaction that is 
     not a commodity contract under this paragraph, except that 
     the master agreement shall be considered to be a commodity 
     contract under this paragraph only with respect to each 
     agreement or transaction under the master agreement that is 
     referred to in subparagraph (A), (B), (C), (D), (E), (F), 
     (G), or (H); or
       ``(J) any security agreement or arrangement or other credit 
     enhancement related to any agreement or transaction referred 
     to in this paragraph, including any guarantee or 
     reimbursement obligation by or to a commodity broker or 
     financial participant in connection with any agreement or 
     transaction referred to in this paragraph, but not to exceed 
     the damages in connection with any such agreement or 
     transaction, measured in accordance with section 562;''.
       (b) Definitions of Financial Institution, Financial 
     Participant, Forward Contract Merchant, Commodity Broker, 
     Corporation, Repoparticipant, Stockbrocker, and Swap 
     Participant.--Section 101 of title 11, United States Code, is 
     amended--
       (1) by striking paragraph (22) and inserting the following:
       ``(22) `financial institution' means--
       ``(A) a Federal reserve bank, or an entity (domestic or 
     foreign) that is a commercial or savings bank, industrial 
     savings bank, savings and loan association, trust company, 
     federally-insured credit union, or receiver, liquidating 
     agent, or conservator for such entity and, when any such 
     Federal reserve bank, receiver, liquidating agent, 
     conservator or entity is acting as agent or custodian for a 
     customer (whether or not a `customer' as defined in section 
     741) in connection with a securities contract (as defined in 
     section 741) such customer; or
       ``(B) in connection with a securities contract (as defined 
     in section 741) an investment company registered under the 
     Investment Company Act of 1940;'';
       (2) by inserting after paragraph (22) the following:
       ``(22A) `financial participant' means--
       ``(A) an entity (domestic or foreign) that, at the time it 
     enters into a securities contract, commodity contract, swap 
     agreement, repurchase agreement, or forward contract, or at 
     the time of the date of the filing of the petition, has one 
     or more agreements or transactions described in paragraph 
     (1), (2), (3), (4), (5), or (6) of section 561(a) with the 
     debtor or any other entity (other than an affiliate) of a 
     total gross dollar value of not less than $1,000,000,000 in 
     notional or actual principal amount outstanding at such time 
     or on any day during the 15-month period prior to the 
     commencement of the case, or has gross mark-to-market 
     positions of not less than $100,000,000 (aggregated across 
     counterparties) in one or more such agreements or 
     transactions with the debtor or any other entity (other than 
     an affiliate) at such time of or any day during the 15-month 
     period prior to the commencement of the case; or
       ``(B) a clearing organization (as defined in section 402 of 
     the Federal Deposit Insurance Corporation Improvement Act of 
     1991);'';
       (3) by striking paragraph (26) and inserting the following:
       ``(26) `forward contract merchant' means a Federal reserve 
     bank, or an entity (domestic or foreign) the business of 
     which consists in whole or in part of entering into forward 
     contracts as or with merchants in a commodity (as defined in 
     section 761) 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;
       (4) by inserting in paragraph (6) after ``means'' the 
     following: ``, whether domestic or foreign,'';
       (5) by inserting in paragraph (9) the following after 
     ``business trust'': ``(and for purposes of section 109, any 
     trust that enters into one or more contracts that are 
     described in any one or more of paragraphs (1) through (5) of 
     section 561(a) shall be deemed to be a business trust)'';
       (6) by inserting in paragraph (46) after ``entity'' the 
     following: ``(domestic or foreign)'';
       (7) by striking in paragraph (53A) ``person'' and replacing 
     it with ``entity (domestic or foreign)'' and striking 
     ``person's'' and replacing it with ``entity's''; and
       (8) by inserting in paragraph (53C) after ``entity'' the 
     following: ``(domestic or foreign)''.
       (c) Definition of Master Netting Agreement and Master 
     Netting Agreement Participant.--Section 101 of title 11, 
     United States Code, is amended by inserting after paragraph 
     (38) the following new paragraphs:
       ``(38A) `master netting agreement'--
       ``(A) means an agreement providing for the exercise of 
     rights, including rights of netting, setoff, liquidation, 
     termination, acceleration, or close out, under or in 
     connection with one or more contracts that are described in 
     any one or more of paragraphs (1) through (5) of section 
     561(a), or any security agreement or arrangement or other 
     credit enhancement related to one or more of the foregoing, 
     including any guarantee or reimbursement obligation related 
     to 1 or more of the foregoing; and
       ``(B) if the agreement contains provisions relating to 
     agreements or transactions that are not contracts described 
     in paragraphs (1) through (5) of section 561(a), shall be 
     deemed to be a master netting agreement only with respect to 
     those agreements or transactions that are described in any 
     one or more of paragraphs (1) through (5) of section 561(a);
       ``(38B) `master netting agreement participant' means an 
     entity (domestic or foreign) that, at any time before the 
     filing of the petition, is a party to an outstanding master 
     netting agreement with the debtor;''.
       (d) Swap Agreements, Securities Contracts, Commodity 
     Contracts, Forward Contracts, Repurchase Agreements, and 
     Master Netting Agreements Under the Automatic-Stay.--
       (1) In general.--Section 362(b) of title 11, United States 
     Code, as amended by sections 224, 303, 311, 401, and 718, is 
     amended--
       (A) by striking paragraph (6) and inserting the following:
       ``(6) under subsection (a) of this section, of the exercise 
     by a commodity broker, forward

[[Page 3539]]

     contract merchant, stockbroker, financial institution, 
     financial 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 related 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 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;'';
       (B) by striking paragraph (7) and inserting the following:
       ``(7) under subsection (a) of this section, of the exercise 
     by a repoparticipant or financial participant of any 
     contractual right (as defined in section 559) under any 
     security agreement or arrangement or other credit enhancement 
     forming a part of or related to any repurchase agreement, or 
     of any contractual right (as defined in section 559) to 
     offset or net out any termination value, payment amount, or 
     other transfer obligation arising under or in connection with 
     1 or more such agreements, including any master agreement for 
     such agreements;'';
       (C) by striking paragraph (17) and inserting the following:
       ``(17) under subsection (a) of this section, of the 
     exercise by a swap participant or financial participant of 
     any contractual right (as defined in section 560) under any 
     security agreement or arrangement or other credit enhancement 
     forming a part of related to any swap agreement, or of any 
     contractual right (as defined in section 560) to offset or 
     net out any termination value, payment amount, or other 
     transfer obligation arising under or in connection with I or 
     more such agreements, including any master agreement for such 
     agreements;''; and
       (D) by inserting after paragraph (26) the following:
       ``(27) under subsection (a) of this section, of the 
     exercise by a master netting agreement participant of any 
     contractual right (as defined in section 555, 556, 559, or 
     560) under any security agreement or arrangement or other 
     credit enhancement forming a part of or related to any master 
     netting agreement or any contract or agreement subject to 
     such 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 or contracts or agreements subject 
     thereto 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 netting 
     agreement in issue; and''.
       (2) Limitation.--Section 362 of title 11, United States 
     Code, as amended by sections 106, 305, 311, and 441, is 
     amended by adding at the end the following:
       ``(o) The exercise of rights not subject to the stay 
     arising under subsection (a) pursuant to paragraph (6), (7), 
     (17), or (27) of subsection (b) shall not be stayed by any 
     order of a court or administrative agency in any proceeding 
     under this title.''.
       (e) Limitation of Avoidance Powers Under Master Netting 
     Agreement.--Section 546 of title 11, United States Code, is 
     amended--
       (1) in subsection (e), by inserting ``(or for the benefit 
     of)'' before ``a commodity broker'' and by inserting: ``or 
     that is a transfer made by or to (or for the benefit of) a 
     commodity broker, forward contract merchant, stockbroker, 
     financial institution, financial participant, or securities 
     clearing agency, in connection with a securities contract, as 
     defined in section 741(7), commodity contract, as defined in 
     section 761(4), or forward contract, in each case,'' after 
     ``securities clearing agency,'';
       (2) in subsection (f), by striking ``that is a margin 
     payment, as defined in section 101, 741, or 761 of this 
     title, or settlement payment, as defined in section 101 or 
     741 of this title,'' and inserting ``(or for the benefit 
     of)'' before ``repoparticipant'';
       (3) in subsection (g) (as added by section 103 of Public 
     Law 101-311)--
       (A) by striking ``under a swap agreement'';
       (B) by striking ``in connection with a swap agreement'' and 
     inserting ``under or in connection with any swap agreement'';
       (C) by inserting ``or financial participant'' after ``swap 
     participant''; and
       (D) by inserting ``(or for the benefit of)'' before ``a 
     swap participant''; and
       (4) by adding at the end the following:
       ``(j) Notwithstanding sections 544, 545, 547, 548(a)(1)(B), 
     and 548(b) the trustee may not avoid a transfer made by or to 
     or for the benefit of a master netting agreement participant 
     under or in connection with any master netting agreement or 
     any individual contract covered thereby that is made before 
     the commencement of the case, except under section 
     548(a)(1)(A) and except to the extent that the trustee could 
     otherwise avoid such a transfer made under an individual 
     contract covered by such master netting agreement.''.
       (f) Fraudulent Transfers of Master Netting Agreements.--
     Section 548(d)(2) of title 11, United States Code, is 
     amended--
       (1) in subparagraph (C), by striking ``and'' at the end;
       (2) in subparagraph (D), by striking the period and 
     inserting ``; and''; and
       (3) by adding at the end the following new subparagraph:
       ``(E) a master netting agreement participant that receives 
     a transfer in connection with a master netting agreement or 
     any individual contract covered thereby takes for value to 
     the extent of such transfer, except that, with respect to a 
     transfer under any individual contract covered thereby, to 
     the extent that such master netting agreement participant 
     otherwise did not take (or is otherwise not deemed to have 
     taken) such transfer for value.''.
       (g) Termination or Acceleration of Securities Contracts.--
     Section 555 of title 11, United States Code, is amended--
       (1) by amending the section heading to read as follows:

     ``Sec. 555. Contractual right to liquidate, terminate, or 
       accelerate a securities contract'';

     and
       (2) in the first sentence, by striking ``liquidation'' and 
     inserting ``liquidation, termination, or acceleration''.
       (h) Termination or Acceleration of Commodities or Forward 
     Contracts.--Section 556 of title 11, United States Code, is 
     amended--
       (1) by amending the section heading to read as follows:

     ``Sec. 556. Contractual right to liquidate, terminate, or 
       accelerate a commodities contract or forward contract'';

       (2) in the first sentence, by striking ``liquidation'' and 
     inserting ``liquidation, termination, or acceleration''; and
       (3) in the second sentence, by striking ``As used'' and all 
     that follows through ``right,'' and inserting ``As used in 
     this section, the term `contractual right' includes a right 
     set forth in a rule or bylaw of a derivatives clearing 
     organization (as defined in the Commodity Exchange Act), a 
     multilateral clearing organization (as defined in the Federal 
     Deposit Insurance Corporation Improvement Act of 1991), a 
     national securities exchange, a national securities 
     association, a securities 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) or in a resolution of the governing 
     board thereof and a right,''.
       (i) Termination or Acceleration of Repurchase Agreements.--
     Section 559 of title 11, United States Code, is amended--
       (1) by amending the section heading to read as follows:

     ``Sec. 559. Contractual right to liquidate, terminate, or 
       accelerate a repurchase agreement'';

       (2) in the first sentence, by striking ``liquidation'' and 
     inserting ``liquidation, termination, or acceleration''; and
       (3) in the third sentence, by striking ``As used'' and all 
     that follows through ``right,'' and inserting ``As used in 
     this section, the term `contractual right' includes a right 
     set forth in a rule or bylaw of a derivatives clearing 
     organization (as defined in the Commodity Exchange Act), a 
     multilateral clearing organization (as defined in the Federal 
     Deposit Insurance Corporation Improvement Act of 1991), a 
     national securities exchange, a national securities 
     association, a securities 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) or in a resolution of the governing 
     board thereof and a right,''.
       (j) Liquidation, Termination, or Acceleration of Swap 
     Agreements.--Section 560 of title 11, United States Code, is 
     amended--
       (1) by amending the section heading to read as follows:

     ``Sec. 560. Contractual right to liquidate, terminate, or 
       accelerate a swap agreement'';

       (2) in the first sentence, by striking ``termination of a 
     swap agreement'' and inserting ``liquidation, termination, or 
     acceleration of one or more swap agreements'';
       (3) by striking ``in connection with any swap agreement'' 
     and inserting ``in connection with the termination, 
     liquidation, or acceleration of one or more swap 
     agreements''; and
       (4) in the second sentence, by striking ``As used'' and all 
     that follows through ``right,'' and inserting ``As used in 
     this section, the term `contractual right' includes a right 
     set forth in a rule or bylaw of a derivatives clearing 
     organization (as defined in the Commodity Exchange Act), a 
     multilateral clearing organization (as defined in the Federal 
     Deposit Insurance Corporation Improvement Act of 1991), a 
     national securities exchange, a national securities 
     association, a securities 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) or in a resolution of the governing 
     board thereof and a right,''.
       (k) Liquidation, Termination, Acceleration, or Offset Under 
     a Master Netting Agreement and Across Contracts.--
       (1) In general.--Title 11, United States Code, is amended 
     by inserting after section 560 the following:

[[Page 3540]]



     ``Sec. 561. Contractual right to terminate, liquidate, 
       accelerate, or offset under a master netting agreement and 
       across contracts; proceedings under chapter 15

       ``(a) Subject to subsection (b), the exercise of any 
     contractual right, because of a condition of the kind 
     specified in section 365(e)(1), to cause the termination, 
     liquidation, or acceleration of or to offset or net 
     termination values, payment amounts, or other transfer 
     obligations arising under or in connection with one or more 
     (or the termination, liquidation, or acceleration of one or 
     more)--
       ``(1) securities contracts, as defined in section 741(7);
       ``(2) commodity contracts, as defined in section 761(4);
       ``(3) forward contracts;
       ``(4) repurchase agreements;
       ``(5) swap agreements; or
       ``(6) master netting agreements,

     shall not be stayed, avoided, or otherwise limited by 
     operation of any provision of this title or by any order of a 
     court or administrative agency in any proceeding under this 
     title.
       ``(b)(1) A party may exercise a contractual right described 
     in subsection (a) to terminate, liquidate, or accelerate only 
     to the extent that such party could exercise such a right 
     under section 555, 556, 559, or 560 for each individual 
     contract covered by the master netting agreement in issue.
       ``(2) If a debtor is a commodity broker subject to 
     subchapter IV of chapter 7--
       ``(A) a party may not net or offset an obligation to the 
     debtor arising under, or in connection with, a commodity 
     contract traded on or subject to the rules of a contract 
     market designated under the Commodity Exchange Act or a 
     derivatives transaction execution facility registered under 
     the Commodity Exchange Act against any claim arising under, 
     or in connection with, other instruments, contracts, or 
     agreements listed in subsection (a) except to the extent that 
     the party has positive net equity in the commodity accounts 
     at the debtor, as calculated under such subchapter; and
       ``(B) another commodity broker may not net or offset an 
     obligation to the debtor arising under, or in connection 
     with, a commodity contract entered into or held on behalf of 
     a customer of the debtor and traded on or subject to the 
     rules of a contract market designated under the Commodity 
     Exchange Act or a derivatives transaction execution facility 
     registered under the Commodity Exchange Act against any claim 
     arising under, or in connection with, other instruments, 
     contracts, or agreements listed in subsection (a).
       ``(3) No provision of subparagraph (A) or (B) of paragraph 
     (2) shall prohibit the offset of claims and obligations that 
     arise under--
       ``(A) a cross-margining agreement or similar arrangement 
     that has been approved by the Commodity Futures Trading 
     Commission or submitted to the Commodity Futures Trading 
     Commission under paragraph (1) or (2) of section 5c(c) of the 
     Commodity Exchange Act and has not been abrogated or rendered 
     ineffective by the Commodity Futures Trading Commission; or
       ``(B) any other netting agreement between a clearing 
     organization (as defined in section 761) and another entity 
     that has been approved by the Commodity Futures Trading 
     Commission.
       ``(c) As used in this section, the term `contractual right' 
     includes a right set forth in a rule or bylaw of a 
     derivatives clearing organization (as defined in the 
     Commodity Exchange Act), a multilateral clearing organization 
     (as defined in the Federal Deposit Insurance Corporation 
     Improvement Act of 1991), a national securities exchange, a 
     national securities association, a securities 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) or in a 
     resolution of the governing board thereof, and a right, 
     whether or not evidenced in writing, arising under common 
     law, under law merchant, or by reason of normal business 
     practice.
       ``(d) Any provisions of this title relating to securities 
     contracts, commodity contracts, forward contracts, repurchase 
     agreements, swap agreements, or master netting agreements 
     shall apply in a case under chapter 15, so that enforcement 
     of contractual provisions of such contracts and agreements in 
     accordance with their terms will not be stayed or otherwise 
     limited by operation of any provision of this title or by 
     order of a court in any case under this title, and to limit 
     avoidance powers to the same extent as in a proceeding under 
     chapter 7 or 11 of this title (such enforcement not to be 
     limited based on the presence or absence of assets of the 
     debtor in the United States).''.
       (2) Conforming amendment.--The table of sections for 
     chapter 5 of title 11, United States Code, is amended by 
     inserting after the item relating to section 560 the 
     following:

``561. Contractual right to terminate, liquidate, accelerate, or offset 
              under a master netting agreement and across contracts; 
              proceedings under chapter 15.''.

       (l) Commodity Broker Liquidations.--Title 11, United States 
     Code, is amended by inserting after section 766 the 
     following:

     ``Sec. 767. Commodity broker liquidation and forward contract 
       merchants, commodity brokers, stockbrokers, financial 
       institutions, financial participants, securities clearing 
       agencies, swap participants, repopartici
       pants, and master netting agreement participants

       ``Notwithstanding any other provision of this title, the 
     exercise of rights by a forward contract merchant, commodity 
     broker, stockbroker, financial institution, financial 
     participant, securities clearing agency, swap participant, 
     repoparticipant, or master netting agreement participant 
     under this title shall not affect the priority of any 
     unsecured claim it may have after the exercise of such 
     rights.''.
       (m) Stockbroker Liquidations.--Title 11, United States 
     Code, is amended by inserting after section 752 the 
     following:

     ``Sec. 753. Stockbroker liquidation and forward contract 
       merchants, commodity brokers, stockbrokers, financial 
       institutions, financial participants, securities clearing 
       agencies, swap participants, repoparticipants, and master 
       netting agreement participants

       ``Notwithstanding any other provision of this title, the 
     exercise of rights by a forward contract merchant, commodity 
     broker, stockbroker, financial institution, financial 
     participant, securities clearing agency, swap participant, 
     repoparticipant, or master netting agreement participant 
     under this title shall not affect the priority of any 
     unsecured claim it may have after the exercise of such 
     rights.''.
       (n) Setoff.--Section 553 of title 11, United States Code, 
     is amended--
       (1) in subsection (a)(2)(B)(ii), by inserting before the 
     semicolon the following: ``(except for a setoff of a kind 
     described in section 362(b)(6), 362(b)(7), 362(b)(17), 
     362(b)(27), 555, 556, 559, 560, or 561)'';
       (2) in subsection (a)(3)(C), by inserting before the period 
     the following: ``(except for a setoff of a kind described in 
     section 362(b)(6), 362(b)(7), 362(b)(17), 362(b)(27), 555, 
     556, 559, 560, or 561)''; and
       (3) in subsection (b)(1), by striking ``362(b)(14),'' and 
     inserting ``362(b)(17), 362(b)(27), 555, 556, 559, 560, 
     561,''; and
       (4) by adding at the end the following:
       ``(d) Treatment of Certain Debts.--Debts and claims will 
     not be considered as lacking mutuality as a result of such 
     debts or claims being held through one or more securities 
     clearing systems, securities intermediaries, or securities 
     depositories (or nominees thereof), notwithstanding any 
     otherwise applicable nonbankruptcy law to the contrary.''.
       (o) Securities Contracts, Commodity Contracts, and Forward 
     Contracts.--Title 11, United States Code, is amended--
       (1) in section 546(f), by inserting ``or financial 
     participant'' after ``repoparticipant'' each place such term 
     appears;
       (2) in section 546(e), by inserting ``financial 
     participant,'' after ``financial institution,'';
       (3) in section 548(d)(2)(B), by inserting ``financial 
     participant,'' after ``financial institution,'';
       (4) in section 548(d)(2)(C), by inserting ``or financial 
     participant'' after ``repoparticipant'';
       (5) in section 548(d)(2)(D), by inserting ``or financial 
     participant'' after ``swap participant'';
       (6) in section 555--
       (A) by inserting ``financial participant,'' after 
     ``financial institution,''; and
       (B) by striking the second sentence and inserting the 
     following: ``As used in this section, the term `contractual 
     right' includes a right set forth in a rule or bylaw of a 
     derivatives clearing organization (as defined in the 
     Commodity Exchange Act), a multilateral clearing organization 
     (as defined in the Federal Deposit Insurance Corporation 
     Improvement Act of 1991), a national securities exchange, a 
     national securities association, a securities 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), or in a 
     resolution of the governing board thereof, and a right, 
     whether or not in writing, arising under common law, under 
     law merchant, or by reason of normal business practice.'';
       (7) in section 556, by inserting ``, financial 
     participant,'' after ``commodity broker'';
       (8) in section 559, by inserting ``or financial 
     participant'' after ``repoparticipant'' each place such term 
     appears; and
       (9) in section 560, by inserting ``or financial 
     participant'' after ``swap participant''.
       (p) Conforming Amendments.--Title 11, United States Code, 
     is amended--
       (1) in the table of sections for chapter 5--
       (A) by amending the items relating to sections 555 and 556 
     to read as follows:

``555. Contractual right to liquidate, terminate, or accelerate a 
              securities contract.
``556. Contractual right to liquidate, terminate, or accelerate a 
              commodities contract or forward contract.'';

     and
       (B) by amending the items relating to sections 559 and 560 
     to read as follows:


[[Page 3541]]


``559. Contractual right to liquidate, terminate, or accelerate a 
              repurchase agreement.
``560. Contractual right to liquidate, terminate, or accelerate a swap 
              agreement.'';

     and
       (2) in the table of sections for chapter 7--
       (A) by inserting after the item relating to section 766 the 
     following:

``767. Commodity broker liquidation and forward contract merchants, 
              commodity brokers, stockbrokers, financial institutions, 
              financial participants, securities clearing agencies, 
              swap participants, repoparticipants, and master netting 
              agreement participants.'';

     and
       (B) by inserting after the item relating to section 752 the 
     following:

``753. Stockbroker liquidation and forward contract merchants, 
              commodity brokers, stockbrokers, financial institutions, 
              financial participants, securities clearing agencies, 
              swap participants, repoparticipants, and master netting 
              agreement participants.''.

     SEC. 908. RECORDKEEPING REQUIREMENTS.

       (a) FDIC-Insured Depository Institutions.--Section 11(e)(8) 
     of the Federal Deposit Insurance Act (12 U.S.C. 1821(e)(8)) 
     is amended by adding at the end the following new 
     subparagraph:
       ``(H) Recordkeeping requirements.--The Corporation, in 
     consultation with the appropriate Federal banking agencies, 
     may prescribe regulations requiring more detailed 
     recordkeeping by any insured depository institution with 
     respect to qualified financial contracts (including market 
     valuations) only if such insured depository institution is in 
     a troubled condition (as such term is defined by the 
     Corporation pursuant to section 32).''.
       (b) Insured Credit Unions.--Section 207(c)(8) of the 
     Federal Credit Union Act (12 U.S.C. 1787(c)(8)) is amended by 
     adding at the end the following new subparagraph:
       ``(H) Recordkeeping requirements.--The Board, in 
     consultation with the appropriate Federal banking agencies, 
     may prescribe regulations requiring more detailed 
     recordkeeping by any insured credit union with respect to 
     qualified financial contracts (including market valuations) 
     only if such insured credit union is in a troubled condition 
     (as such term is defined by the Board pursuant to section 
     212).''.

     SEC. 909. EXEMPTIONS FROM CONTEMPORANEOUS EXECUTION 
                   REQUIREMENT.

       Section 13(e)(2) of the Federal Deposit Insurance Act (12 
     U.S.C. 1823(e)(2)) is amended to read as follows:
       ``(2) Exemptions from contemporaneous execution 
     requirement.--An agreement to provide for the lawful 
     collateralization of--
       ``(A) deposits of, or other credit extension by, a Federal, 
     State, or local governmental entity, or of any depositor 
     referred to in section 11(a)(2), including an agreement to 
     provide collateral in lieu of a surety bond;
       ``(B) bankruptcy estate funds pursuant to section 345(b)(2) 
     of title 11, United States Code;
       ``(C) extensions of credit, including any overdraft, from a 
     Federal reserve bank or Federal home loan bank; or
       ``(D) one or more qualified financial contracts, as defined 
     in section 11(e)(8)(D),

     shall not be deemed invalid pursuant to paragraph (1)(B) 
     solely because such agreement was not executed 
     contemporaneously with the acquisition of the collateral or 
     because of pledges, delivery, or substitution of the 
     collateral made in accordance with such agreement.''.

     SEC. 910. DAMAGE MEASURE.

       (a) In General.--Title 11, United States Code, is amended--
       (1) by inserting after section 561, as added by section 
     907, the following:

     ``Sec. 562. Timing of damage measurement in connection with 
       swap agreements, securities contracts, forward contracts, 
       commodity contracts, repurchase agreements, and master 
       netting agreements

       ``(a) If the trustee rejects a swap agreement, securities 
     contract (as defined in section 741), forward contract, 
     commodity contract (as defined in section 761), repurchase 
     agreement, or master netting agreement pursuant to section 
     365(a), or if a forward contract merchant, stockbroker, 
     financial institution, securities clearing agency, 
     repoparticipant, financial participant, master netting 
     agreement participant, or swap participant liquidates, 
     terminates, or accelerates such contract or agreement, 
     damages shall be measured as of the earlier of--
       ``(1) the date of such rejection; or
       ``(2) the date or dates of such liquidation, termination, 
     or acceleration.
       ``(b) If there are not any commercially reasonable 
     determinants of value as of any date referred to in paragraph 
     (1) or (2) of subsection (a), damages shall be measured as of 
     the earliest subsequent date or dates on which there are 
     commercially reasonable determinants of value.
       ``(c) For the purposes of subsection (b), if damages are 
     not measured as of the date or dates of rejection, 
     liquidation, termination, or acceleration, and the forward 
     contract merchant, stockbroker, financial institution, 
     securities clearing agency, repoparticipant, financial 
     participant, master netting agreement participant, or swap 
     participant or the trustee objects to the timing of the 
     measurement of damages--
       ``(1) the trustee, in the case of an objection by a forward 
     contract merchant, stockbroker, financial institution, 
     securities clearing agency, repoparticipant, financial 
     participant, master netting agreement participant, or swap 
     participant; or
       ``(2) the forward contract merchant, stockbroker, financial 
     institution, securities clearing agency, repoparticipant, 
     financial participant, master netting agreement participant, 
     or swap participant, in the case of an objection by the 
     trustee,

     has the burden of proving that there were no commercially 
     reasonable determinants of value as of such date or dates.''; 
     and
       (2) in the table of sections for chapter 5, by inserting 
     after the item relating to section 561 (as added by section 
     907) the following new item:

``562. Timing of damage measure in connection with swap agreements, 
              securities contracts, forward contracts, commodity 
              contracts, repurchase agreements, or master netting 
              agreements.''.

       (b) Claims Arising From Rejection.--Section 502(g) of title 
     11, United States Code, is amended--
       (1) by inserting ``(1)'' after ``(g)''; and
       (2) by adding at the end the following:
       ``(2) A claim for damages calculated in accordance with 
     section 562 shall be allowed under subsection (a), (b), or 
     (c), or disallowed under subsection (d) or (e), as if such 
     claim had arisen before the date of the filing of the 
     petition.''.

     SEC. 911. SIPC STAY.

       Section 5(b)(2) of the Securities Investor Protection Act 
     of 1970 (15 U.S.C. 78eee(b)(2)) is amended by adding at the 
     end the following new subparagraph:
       ``(C) Exception from stay.--
       ``(i) Notwithstanding section 362 of title 11, United 
     States Code, neither the filing of an application under 
     subsection (a)(3) nor any order or decree obtained by SIPC 
     from the court shall operate as a stay of any contractual 
     rights of a creditor to liquidate, terminate, or accelerate a 
     securities contract, commodity contract, forward contract, 
     repurchase agreement, swap agreement, or master netting 
     agreement, as those terms are defined in sections 101, 741, 
     and 761 of title 11, United States Code, to offset or net 
     termination values, payment amounts, or other transfer 
     obligations arising under or in connection with one or more 
     of such contracts or agreements, or to foreclose on any cash 
     collateral pledged by the debtor, whether or not with respect 
     to one or more of such contracts or agreements.
       ``(ii) Notwithstanding clause (i), such application, order, 
     or decree may operate as a stay of the foreclosure on, or 
     disposition of, securities collateral pledged by the debtor, 
     whether or not with respect to one or more of such contracts 
     or agreements, securities sold by the debtor under a 
     repurchase agreement, or securities lent under a securities 
     lending agreement.
       ``(iii) As used in this subparagraph, the term `contractual 
     right' includes a right set forth in a rule or bylaw of a 
     derivatives clearing organization (as defined in the 
     Commodity Exchange Act), a multilateral clearing organization 
     (as defined in the Federal Deposit Insurance Corporation 
     Improvement Act of 1991), a national securities exchange, a 
     national securities association, a securities 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), or in a 
     resolution of the governing board thereof, and a right, 
     whether or not in writing, arising under common law, under 
     law merchant, or by reason of normal business practice.''.

     SEC. 912. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.

       (a) Effective Date.--This title shall take effect on the 
     date of enactment of the Act.
       (b) Application of Amendments.--The amendments made by this 
     title and section 502 shall apply with respect to cases 
     commenced or appointments made under any Federal or State law 
     on or after the date of enactment of this Act, but shall not 
     apply with respect to cases commenced or appointments made 
     under any Federal or State law before the date of enactment 
     of this Act.

     SEC. 913. SAVINGS CLAUSE.

       The meanings of terms used in this title are applicable for 
     the purposes of this title only, and shall not be construed 
     or applied so as to challenge or affect the characterization, 
     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 that term is defined in section 
     3(a)(47) of the Securities Exchange Act of 1934), and the 
     Commodity Exchange Act.
                                 ______
                                 
  SA 55. Mr. HAGEL submitted an amendment intended to be proposed by

[[Page 3542]]

him to the bill S. 256, to amend title 11 of the United States Code, 
and for other purposes; which was ordered to lie on the table; as 
follows:

        On page 473, between lines 9 and 10, insert the following:

     SEC. 1236. DISTRICT JUDGESHIP FOR THE DISTRICT OF NEBRASKA.

       (a) In General.--The President shall appoint, by and with 
     the advice and consent of the Senate, 1 additional district 
     judge for the district of Nebraska.
       (b) Technical and Conforming Amendments.--The table under 
     section 133(a) of title 28, United States Code, is amended by 
     striking the item relating to Nebraska and inserting the 
     following:

 ``Nebraska...................................................4.''.....

                                 ______
                                 
  SA 56. Mr. HAGEL submitted an amendment intended to be proposed by 
him to the bill S. 256, to amend title 11 of the United States Code, 
and for other purposes; which was ordered to lie on the table; as 
follows:

          On page 452, strike line 15 and all that follows through 
     page 458, line 16.
                                 ______
                                 
  SA 57. Mr. HAGEL submitted an amendment intended to be proposed by 
him to the bill S. 256, to amend title 11 of the United States Code, 
and for other purposes; which was ordered to lie on the table; as 
follows:

       On page 473, between lines 9 and 10, insert the following:

     SEC. 1236. DISTRICT JUDGESHIPS.

       (a) District Judgeship for the Northern District of 
     Alabama.--
       (1) Additional permanent district judgeship.--The President 
     shall appoint, by and with the advice and consent of the 
     Senate, 1 additional district judge for the northern district 
     of Alabama.
       (2) Technical and conforming amendment.--The table under 
     section 133(a) of title 28, United States Code, is amended by 
     striking the item relating to Alabama and inserting the 
     following:

``Alabama:.............................................................
 Northern.....................................................8    ....

 Middle.......................................................3    ....

 Southern.....................................................3.''.....

       (b) District Judgeships for the District of Arizona.--
       (1) Additional permanent district judgeships.--The 
     President shall appoint, by and with the advice and consent 
     of the Senate, 2 additional district judges for the district 
     of Arizona.
       (2) Technical and conforming amendment.--The table under 
     section 133(a) of title 28, United States Code, is amended by 
     striking the item relating to Arizona and inserting the 
     following:

 ``Arizona...................................................14.''.....

       (c) District Judgeships for the Eastern and Southern 
     Districts of California.--
       (1) Additional permanent district judgeships.--The 
     President shall appoint, by and with the advice and consent 
     of the Senate--
       (A) 3 additional district judges for the eastern district 
     of California; and
       (B) 1 additional district judge for the southern district 
     of California.
       (2) Conversion of temporary judgeship to permanent 
     judgeship.--The existing judgeship for the eastern district 
     of California authorized by section 203(c) of the Judicial 
     Improvements Act of 1990 (28 U.S.C. 133 note; Public Law 101-
     650) shall, as of the date of enactment of this Act, be 
     authorized under section 133 of title 28, United States Code, 
     and the incumbent in that office shall hold the office under 
     section 133 of title 28, United States Code, as amended by 
     this Act.
       (3) Technical and conforming amendment.--The table under 
     section 133(a) of title 28, United States Code, is amended by 
     striking the item relating to California and inserting the 
     following:

``California:..........................................................
 Northern....................................................14    ....

 Eastern.....................................................10    ....

 Central.....................................................27    ....

 Southern....................................................14.''.....

       (d) District Judgeship for the District of Idaho.--
       (1) Additional permanent district judgeship.--The President 
     shall appoint, by and with the advice and consent of the 
     Senate, 1 additional district judge for the district of 
     Idaho.
       (2) Technical and conforming amendment.--The table under 
     section 133(a) of title 28, United States Code, is amended by 
     striking the item relating to Idaho and inserting the 
     following:

  ``Idaho.....................................................3.''.....

       (e) Temporary Judgeship for the Northern District of 
     Iowa.--
       (1) In general.--The President shall appoint, by and with 
     the advice and consent of the Senate, 1 additional judge for 
     the northern district of Iowa.
       (2) Vacancy not filled.--The first vacancy in the office of 
     district judge in the northern district of Iowa occurring 10 
     years or more after the confirmation date of the judge named 
     to fill the temporary district judgeship created by this 
     subsection, shall not be filled.
       (f) District Judgeship for the District of Nebraska.--
       (1) In general.--The President shall appoint, by and with 
     the advice and consent of the Senate, 1 additional district 
     judge for the district of Nebraska.
       (2) Technical and conforming amendments.--The table under 
     section 133(a) of title 28, United States Code, is amended by 
     striking the item relating to Nebraska and inserting the 
     following:

 ``Nebraska...................................................4.''.....

       (g) District Judgeships for the Eastern District of New 
     York.--
       (1) Additional permanent district judgeships.--The 
     President shall appoint, by and with the advice and consent 
     of the Senate, 2 additional district judges for the eastern 
     district of New York.
       (2) Technical and conforming amendment.--The table under 
     section 133(a) of title 28, United States Code, is amended by 
     striking the item relating to New York and inserting the 
     following:

``New York:............................................................
 Northern.....................................................5    ....

 Southern....................................................28    ....

 Eastern.....................................................17    ....

 Western......................................................4.''.....

       (h) Temporary Judgeship for the Eastern District of New 
     York.--
       (1) In general.--The President shall appoint, by and with 
     the advice and consent of the Senate 1 additional judge for 
     the eastern district of New York.
       (2) Vacancy not filled.--The first vacancy in the office of 
     district judge in the eastern district of New York occurring 
     10 years or more after the confirmation date of the judge 
     named to fill the temporary district judgeship created by 
     this subsection, shall not be filled.
       (i) District Judgeship for the District of South 
     Carolina.--
       (1) Additional permanent district judgeship.--The President 
     shall appoint, by and with the advice and consent of the 
     Senate, 1 additional district judge for the district of South 
     Carolina.
       (2) Technical and conforming amendment.--The table under 
     section 133(a) of title 28, United States Code, is amended by 
     striking the item relating to South Carolina and inserting 
     the following:

 ``South Carolina............................................11.''.....

       (j) District Judgeship for the District of Utah.--
       (1) Additional permanent district judgeship for the 
     district of utah.--The President shall appoint, by and with 
     the advice and consent of the Senate, 1 additional district 
     judge for the district of Utah.
       (2) Technical and conforming amendments.--The table under 
     section 133(a) of title 28, United States Code, is amended by 
     striking the item relating to Utah and inserting the 
     following:

6.''.................................................................

                          ____________________