12 U.S.C. § 1821 : US Code - Section 1821: Insurance Funds

Search 12 U.S.C. § 1821 : US Code - Section 1821: Insurance Funds

(a) Deposit insurance
(1) Insured amounts payable
(A) In general
The Corporation shall insure the deposits of all insured
depository institutions as provided in this chapter.
(B) Net amount of insured deposit
The net amount due to any depositor at an insured depository
institution shall not exceed the standard maximum deposit
insurance amount as determined in accordance with subparagraphs
(C), (D), (E) and (F) and paragraph (3).
(C) Aggregation of deposits
For the purpose of determining the net amount due to any
depositor under subparagraph (B), the Corporation shall
aggregate the amounts of all deposits in the insured depository
institution which are maintained by a depositor in the same
capacity and the same right for the benefit of the depositor
either in the name of the depositor or in the name of any other
person, other than any amount in a trust fund described in
paragraph (1) or (2) of section 1817(i) of this title or any
funds described in section 1817(i)(3) of this title.
(D) Coverage for certain employee benefit plan deposits
(i) Pass-through insurance
The Corporation shall provide pass-through deposit
insurance for the deposits of any employee benefit plan.
(ii) Prohibition on acceptance of benefit plan deposits
An insured depository institution that is not well
capitalized or adequately capitalized may not accept employee
benefit plan deposits.
(iii) Definitions
For purposes of this subparagraph, the following
definitions shall apply:
(I) Capital standards
The terms "well capitalized" and "adequately capitalized"
have the same meanings as in section 1831o of this title.
(II) Employee benefit plan
The term "employee benefit plan" has the same meaning as
in paragraph (5)(B)(ii), and includes any eligible deferred
compensation plan described in section 457 of title 26.
(III) Pass-through deposit insurance
The term "pass-through deposit insurance" means, with
respect to an employee benefit plan, deposit insurance
coverage based on the interest of each participant, in
accordance with regulations issued by the Corporation.
(E) Standard maximum deposit insurance amount defined
For purposes of this chapter, the term "standard maximum
deposit insurance amount" means $100,000, adjusted as provided
under subparagraph (F) after March 31, 2010.
(F) Inflation adjustment
(i) In general
By April 1 of 2010, and the 1st day of each subsequent 5-
year period, the Board of Directors and the National Credit
Union Administration Board shall jointly consider the factors
set forth under clause (v), and, upon determining that an
inflation adjustment is appropriate, shall jointly prescribe
the amount by which the standard maximum deposit insurance
amount and the standard maximum share insurance amount (as
defined in section 1787(k) of this title) applicable to any
depositor at an insured depository institution shall be
increased by calculating the product of -
(I) $100,000; and
(II) the ratio of the published annual value of the
Personal Consumption Expenditures Chain-Type Price Index
(or any successor index thereto), published by the
Department of Commerce, for the calendar year preceding the
year in which the adjustment is calculated under this
clause, to the published annual value of such index for the
calendar year preceding April 1, 2006.
The values used in the calculation under subclause (II) shall
be, as of the date of the calculation, the values most
recently published by the Department of Commerce.
(ii) Rounding
If the amount determined under clause (ii) for any period
is not a multiple of $10,000, the amount so determined shall
be rounded down to the nearest $10,000.
(iii) Publication and report to the Congress
Not later than April 5 of any calendar year in which an
adjustment is required to be calculated under clause (i) to
the standard maximum deposit insurance amount and the
standard maximum share insurance amount under such clause,
the Board of Directors and the National Credit Union
Administration Board shall -
(I) publish in the Federal Register the standard maximum
deposit insurance amount, the standard maximum share
insurance amount, and the amount of coverage under
paragraph (3)(A) and section 1787(k)(3) of this title, as
so calculated; and
(II) jointly submit a report to the Congress containing
the amounts described in subclause (I).
(iv) 6-month implementation period
Unless an Act of Congress enacted before July 1 of the
calendar year in which an adjustment is required to be
calculated under clause (i) provides otherwise, the increase
in the standard maximum deposit insurance amount and the
standard maximum share insurance amount shall take effect on
January 1 of the year immediately succeeding such calendar
year.
(v) Inflation adjustment consideration
In making any determination under clause (i) to increase
the standard maximum deposit insurance amount and the
standard maximum share insurance amount, the Board of
Directors and the National Credit Union Administration Board
shall jointly consider -
(I) the overall state of the Deposit Insurance Fund and
the economic conditions affecting insured depository
institutions;
(II) potential problems affecting insured depository
institutions; or
(III) whether the increase will cause the reserve ratio
of the fund to fall below 1.15 percent of estimated insured
deposits.
(2) Government depositors
(A) In general
Notwithstanding any limitation in this chapter or in any
other provision of law relating to the amount of deposit
insurance available to any 1 depositor -
(i) a government depositor shall, for the purpose of
determining the amount of insured deposits under this
subsection, be deemed to be a depositor separate and distinct
from any other officer, employee, or agent of the United
States or any public unit referred to in subparagraph (B);
and
(ii) except as provided in subparagraph (C), the deposits
of a government depositor shall be insured in an amount equal
to the standard maximum deposit insurance amount (as
determined under paragraph (1)).
(B) Government depositor
In this paragraph, the term "government depositor" means a
depositor that is -
(i) an officer, employee, or agent of the United States
having official custody of public funds and lawfully
investing or depositing the same in time and savings deposits
in an insured depository institution;
(ii) an officer, employee, or agent of any State of the
United States, or of any county, municipality, or political
subdivision thereof having official custody of public funds
and lawfully investing or depositing the same in time and
savings deposits in an insured depository institution in such
State;
(iii) an officer, employee, or agent of the District of
Columbia having official custody of public funds and lawfully
investing or depositing the same in time and savings deposits
in an insured depository institution in the District of
Columbia;
(iv) an officer, employee, or agent of the Commonwealth of
Puerto Rico, of the Virgin Islands, of American Samoa, of the
Trust Territory of the Pacific Islands, or of Guam, or of any
county, municipality, or political subdivision thereof having
official custody of public funds and lawfully investing or
depositing the same in time and savings deposits in an
insured depository institution in the Commonwealth of Puerto
Rico, the Virgin Islands, American Samoa, the Trust Territory
of the Pacific Islands, or Guam, respectively; or
(v) an officer, employee, or agent of any Indian tribe (as
defined in section 1452(c) of title 25) or agency thereof
having official custody of tribal funds and lawfully
investing or depositing the same in time and savings deposits
in an insured depository institution.
(C) Authority to limit deposits
The Corporation may limit the aggregate amount of funds that
may be invested or deposited in deposits in any insured
depository institution by any government depositor on the basis
of the size of any such bank (!1) in terms of its assets:
Provided, however, such limitation may be exceeded by the
pledging of acceptable securities to the government depositor
when and where required.
(3) Certain retirement accounts
(A) In general
Notwithstanding any limitation in this chapter relating to
the amount of deposit insurance available for the account of
any 1 depositor, deposits in an insured depository institution
made in connection with -
(i) any individual retirement account described in section
408(a) of title 26;
(ii) subject to the exception contained in paragraph
(1)(D)(ii), any eligible deferred compensation plan described
in section 457 of title 26; and
(iii) any individual account plan defined in section
1002(34) of title 29, and any plan described in section
401(d) of title 26, to the extent that participants and
beneficiaries under such plan have the right to direct the
investment of assets held in individual accounts maintained
on their behalf by the plan,
shall be aggregated and insured in an amount not to exceed
$250,000 (which amount shall be subject to inflation
adjustments as provided in paragraph (1)(F), except that
$250,000 shall be substituted for $100,000 wherever such term
appears in such paragraph) per participant per insured
depository institution.
(B) Amounts taken into account
For purposes of subparagraph (A), the amount aggregated for
insurance coverage under this paragraph shall consist of the
present vested and ascertainable interest of each participant
under the plan, excluding any remainder interest created by, or
as a result of, the plan.
(4) Deposit Insurance Fund
(A) Establishment
There is established the Deposit Insurance Fund, which the
Corporation shall -
(i) maintain and administer;
(ii) use to carry out its insurance purposes, in the manner
provided by this subsection; and
(iii) invest in accordance with section 1823(a) of this
title.
(B) Uses
The Deposit Insurance Fund shall be available to the
Corporation for use with respect to insured depository
institutions the deposits of which are insured by the Deposit
Insurance Fund.
(C) Limitation on use
Notwithstanding any provision of law other than section
1823(c)(4)(G) of this title, the Deposit Insurance Fund shall
not be used in any manner to benefit any shareholder or
affiliate (other than an insured depository institution that
receives assistance in accordance with the provisions of this
chapter) of -
(i) any insured depository institution for which the
Corporation has been appointed conservator or receiver, in
connection with any type of resolution by the Corporation;
(ii) any other insured depository institution in default or
in danger of default, in connection with any type of
resolution by the Corporation; or
(iii) any insured depository institution, in connection
with the provision of assistance under this section or
section 1823 of this title with respect to such institution,
except that this clause shall not prohibit any assistance to
any insured depository institution that is not in default, or
that is not in danger of default, that is acquiring (as
defined in section 1823(f)(8)(B) of this title) another
insured depository institution.
(D) Deposits
All amounts assessed against insured depository institutions
by the Corporation shall be deposited into the Deposit
Insurance Fund.
(5) Certain investment contracts not treated as insured deposits
(A) In general
A liability of an insured depository institution shall not be
treated as an insured deposit if the liability arises under any
insured depository institution investment contract between any
insured depository institution and any employee benefit plan
which expressly permits benefit-responsive withdrawals or
transfers.
(B) Definitions
For purposes of subparagraph (A) -
(i) Benefit-responsive withdrawals or transfers
The term "benefit-responsive withdrawals or transfers"
means any withdrawal or transfer of funds (consisting of any
portion of the principal and any interest credited at a rate
guaranteed by the insured depository institution investment
contract) during the period in which any guaranteed rate is
in effect, without substantial penalty or adjustment, to pay
benefits provided by the employee benefit plan or to permit a
plan participant or beneficiary to redirect the investment of
his or her account balance.
(ii) Employee benefit plan
The term "employee benefit plan" -
(I) has the meaning given to such term in section 1002(3)
of title 29; and
(II) includes any plan described in section 401(d) of
title 26.
(b) Liquidation as closing of depository institution
For the purposes of this chapter an insured depository
institution shall be deemed to have been closed on account of
inability to meet the demands of its depositors in any case in
which it has been closed for the purpose of liquidation without
adequate provision being made for payment of its depositors.
(c) Appointment of Corporation as conservator or receiver
(1) In general
Notwithstanding any other provision of Federal law, the law of
any State, or the constitution of any State, the Corporation may
accept appointment and act as conservator or receiver for any
insured depository institution upon appointment in the manner
provided in paragraph (2) or (3).
(2) Federal depository institutions
(A) Appointment
(i) Conservator
The Corporation may, at the discretion of the supervisory
authority, be appointed conservator of any insured Federal
depository institution and the Corporation may accept such
appointment.
(ii) Receiver
The Corporation shall be appointed receiver, and shall
accept such appointment, whenever a receiver is appointed for
the purpose of liquidation or winding up the affairs of an
insured Federal depository institution by the appropriate
Federal banking agency, notwithstanding any other provision
of Federal law (other than section 1441a of this title).
(B) Additional powers
In addition to and not in derogation of the powers conferred
and the duties imposed by this section on the Corporation as
conservator or receiver, the Corporation, to the extent not
inconsistent with such powers and duties, shall have any other
power conferred on or any duty (which is related to the
exercise of such power) imposed on a conservator or receiver
for any Federal depository institution under any other
provision of law.
(C) Corporation not subject to any other agency
When acting as conservator or receiver pursuant to an
appointment described in subparagraph (A), the Corporation
shall not be subject to the direction or supervision of any
other agency or department of the United States or any State in
the exercise of the Corporation's rights, powers, and
privileges.
(D) Depository institution in conservatorship subject to
banking agency supervision
Notwithstanding subparagraph (C), any Federal depository
institution for which the Corporation has been appointed
conservator shall remain subject to the supervision of the
appropriate Federal banking agency.
(3) Insured State depository institutions
(A) Appointment by appropriate State supervisor
Whenever the authority having supervision of any insured
State depository institution appoints a conservator or receiver
for such institution and tenders appointment to the
Corporation, the Corporation may accept such appointment.
(B) Additional powers
In addition to the powers conferred and the duties related to
the exercise of such powers imposed by State law on any
conservator or receiver appointed under the law of such State
for an insured State depository institution, the Corporation,
as conservator or receiver pursuant to an appointment described
in subparagraph (A), shall have the powers conferred and the
duties imposed by this section on the Corporation as
conservator or receiver.
(C) Corporation not subject to any other agency
When acting as conservator or receiver pursuant to an
appointment described in subparagraph (A), the Corporation
shall not be subject to the direction or supervision of any
other agency or department of the United States or any State in
the exercise of its rights, powers, and privileges.
(D) Depository institution in conservatorship subject to
banking agency supervision
Notwithstanding subparagraph (C), any insured State
depository institution for which the Corporation has been
appointed conservator shall remain subject to the supervision
of the appropriate State bank or savings association
supervisor.
(4) Appointment of Corporation by the Corporation
Except as otherwise provided in section 1441a of this title and
notwithstanding any other provision of Federal law, the law of
any State, or the constitution of any State, the Corporation may
appoint itself as sole conservator or receiver of any insured
State depository institution if -
(A) the Corporation determines -
(i) that -
(I) a conservator, receiver, or other legal custodian has
been appointed for such institution;
(II) such institution has been subject to the appointment
of any such conservator, receiver, or custodian for a
period of at least 15 consecutive days; and
(III) 1 or more of the depositors in such institution is
unable to withdraw any amount of any insured deposit; or
(ii) that such institution has been closed by or under the
laws of any State; and
(B) the Corporation determines that 1 or more of the grounds
specified in paragraph (5) -
(i) existed with respect to such institution at the time -
(I) the conservator, receiver, or other legal custodian
was appointed; or
(II) such institution was closed; or
(ii) exist at any time -
(I) during the appointment of the conservator, receiver,
or other legal custodian; or
(II) while such institution is closed.
(5) Grounds for appointing conservator or receiver
The grounds for appointing a conservator or receiver (which may
be the Corporation) for any insured depository institution are as
follows:
(A) Assets insufficient for obligations. - The institution's
assets are less than the institution's obligations to its
creditors and others, including members of the institution.
(B) Substantial dissipation. - Substantial dissipation of
assets or earnings due to -
(i) any violation of any statute or regulation; or
(ii) any unsafe or unsound practice.
(C) Unsafe or unsound condition. - An unsafe or unsound
condition to transact business.
(D) Cease and desist orders. - Any willful violation of a
cease-and-desist order which has become final.
(E) Concealment. - Any concealment of the institution's
books, papers, records, or assets, or any refusal to submit the
institution's books, papers, records, or affairs for inspection
to any examiner or to any lawful agent of the appropriate
Federal banking agency or State bank or savings association
supervisor.
(F) Inability to meet obligations. - The institution is
likely to be unable to pay its obligations or meet its
depositors' demands in the normal course of business.
(G) Losses. - The institution has incurred or is likely to
incur losses that will deplete all or substantially all of its
capital, and there is no reasonable prospect for the
institution to become adequately capitalized (as defined in
section 1831o(b) of this title) without Federal assistance.
(H) Violations of law. - Any violation of any law or
regulation, or any unsafe or unsound practice or condition that
is likely to -
(i) cause insolvency or substantial dissipation of assets
or earnings;
(ii) weaken the institution's condition; or
(iii) otherwise seriously prejudice the interests of the
institution's depositors or the Deposit Insurance Fund.
(I) Consent. - The institution, by resolution of its board of
directors or its shareholders or members, consents to the
appointment.
(J) Cessation of insured status. - The institution ceases to
be an insured institution.
(K) Undercapitalization. - The institution is
undercapitalized (as defined in section 1831o(b) of this
title), and -
(i) has no reasonable prospect of becoming adequately
capitalized (as defined in that section);
(ii) fails to become adequately capitalized when required
to do so under section 1831o(f)(2)(A) of this title;
(iii) fails to submit a capital restoration plan acceptable
to that agency within the time prescribed under section
1831o(e)(2)(D) of this title; or
(iv) materially fails to implement a capital restoration
plan submitted and accepted under section 1831o(e)(2) of this
title.
(L) The institution -
(i) is critically undercapitalized, as defined in section
1831o(b) of this title; or
(ii) otherwise has substantially insufficient capital.
(M) Money laundering offense. - The Attorney General notifies
the appropriate Federal banking agency or the Corporation in
writing that the insured depository institution has been found
guilty of a criminal offense under section 1956 or 1957 of
title 18 or section 5322 or 5324 of title 31.
(6) Appointment by Director of the Office of Thrift Supervision
(A) Conservator
The Corporation or the Resolution Trust Corporation may, at
the discretion of the Director of the Office of Thrift
Supervision, be appointed conservator and the Corporation may
accept any such appointment.
(B) Receiver
Whenever the Director of the Office of Thrift Supervision
appoints a receiver under the provisions of subparagraph (A) or
(C) of section 1464(d)(2) of this title for the purpose of
liquidation or winding up any savings association's affairs -
(i) before such date as is determined by the Chairperson of
the Thrift Depositor Protection Oversight Board under section
1441a(b)(3)(A)(ii) of this title, the Resolution Trust
Corporation shall be appointed;
(ii) on or after the date determined by the Chairperson of
the Thrift Depositor Protection Oversight Board under section
1441a(b)(3)(A)(ii) of this title, the Resolution Trust
Corporation shall be appointed if the Resolution Trust
Corporation had been placed in control of the depository
institution at any time before such date; and
(iii) on or after the date determined by the Chairperson of
the Thrift Depositor Protection Oversight Board under section
1441a(b)(3)(A)(ii) of this title, the Corporation shall be
appointed unless the Resolution Trust Corporation is required
to be appointed under clause (ii).
(7) Judicial review
If the Corporation is appointed (including the appointment of
the Corporation as receiver by the Board of Directors) as
conservator or receiver of a depository institution under
paragraph (4), (9), or (10), the depository institution may, not
later than 30 days thereafter, bring an action in the United
States district court for the judicial district in which the home
office of such depository institution is located, or in the
United States District Court for the District of Columbia, for an
order requiring the Corporation to be removed as the conservator
or receiver (regardless of how such appointment was made), and
the court shall, upon the merits, dismiss such action or direct
the Corporation to be removed as the conservator or receiver.
(8) Replacement of conservator of State depository institution
(A) In general
In the case of any insured State depository institution for
which the Corporation appointed itself as conservator pursuant
to paragraph (4), the Corporation may, without any requirement
of notice, hearing, or other action, replace itself as
conservator with itself as receiver of such institution.
(B) Replacement treated as removal of incumbent
The replacement of a conservator with a receiver under
subparagraph (A) shall be treated as the removal of the
Corporation as conservator.
(C) Right of review of original appointment not affected
The replacement of a conservator with a receiver under
subparagraph (A) shall not affect any right of the insured
State depository institution to obtain review, pursuant to
paragraph (7), of the original appointment of the conservator.
(9) Appropriate Federal banking agency may appoint Corporation as
conservator or receiver for insured State depository
institution to carry out section 1831o
(A) In general
The appropriate Federal banking agency may appoint the
Corporation as sole receiver (or, subject to paragraph (11),
sole conservator) of any insured State depository institution,
after consultation with the appropriate State supervisor, if
the appropriate Federal banking agency determines that -
(i) 1 or more of the grounds specified in subparagraphs (K)
and (L) of paragraph (5) exist with respect to that
institution; and
(ii) the appointment is necessary to carry out the purpose
of section 1831o of this title.
(B) Nondelegation
The appropriate Federal banking agency shall not delegate any
action under subparagraph (A).
(10) Corporation may appoint itself as conservator or receiver
for insured depository institution to prevent loss to Deposit
Insurance Fund
The Board of Directors may appoint the Corporation as sole
conservator or receiver of an insured depository institution,
after consultation with the appropriate Federal banking agency
and the appropriate State supervisor (if any), if the Board of
Directors determines that -
(A) 1 or more of the grounds specified in any subparagraph of
paragraph (5) exist with respect to the institution; and
(B) the appointment is necessary to reduce -
(i) the risk that the Deposit Insurance Fund would incur a
loss with respect to the insured depository institution, or
(ii) any loss that the Deposit Insurance Fund is expected
to incur with respect to that institution.
(11) Appropriate Federal banking agency shall not appoint
conservator under certain provisions without giving Corporation
opportunity to appoint receiver
The appropriate Federal banking agency shall not appoint a
conservator for an insured depository institution under
subparagraph (K) or (L) of paragraph (5) without the
Corporation's consent unless the agency has given the Corporation
48 hours notice of the agency's intention to appoint the
conservator and the grounds for the appointment.
(12) Directors not liable for acquiescing in appointment of
conservator or receiver
The members of the board of directors of an insured depository
institution shall not be liable to the institution's shareholders
or creditors for acquiescing in or consenting in good faith to -
(A) the appointment of the Corporation or the Resolution
Trust Corporation as conservator or receiver for that
institution; or
(B) an acquisition or combination under section
1831o(f)(2)(A)(iii) of this title.
(13) Additional powers
In any case in which the Corporation is appointed conservator
or receiver under paragraph (4), (6), (9), or (10) for any
insured State depository institution -
(A) this section shall apply to the Corporation as
conservator or receiver in the same manner and to the same
extent as if that institution were a Federal depository
institution for which the Corporation had been appointed
conservator or receiver; and
(B) the Corporation as receiver of the institution may -
(i) liquidate the institution in an orderly manner; and
(ii) make any other disposition of any matter concerning
the institution, as the Corporation determines is in the best
interests of the institution, the depositors of the
institution, and the Corporation.
(d) Powers and duties of Corporation as conservator or receiver
(1) Rulemaking authority of Corporation
The Corporation may prescribe such regulations as the
Corporation determines to be appropriate regarding the conduct of
conservatorships or receiverships.
(2) General powers
(A) Successor to institution
The Corporation shall, as conservator or receiver, and by
operation of law, succeed to -
(i) all rights, titles, powers, and privileges of the
insured depository institution, and of any stockholder,
member, accountholder, depositor, officer, or director of
such institution with respect to the institution and the
assets of the institution; and
(ii) title to the books, records, and assets of any
previous conservator or other legal custodian of such
institution.
(B) Operate the institution
The Corporation may (subject to the provisions of section
1831q of this title), as conservator or receiver -
(i) take over the assets of and operate the insured
depository institution with all the powers of the members or
shareholders, the directors, and the officers of the
institution and conduct all business of the institution;
(ii) collect all obligations and money due the institution;
(iii) perform all functions of the institution in the name
of the institution which are consistent with the appointment
as conservator or receiver; and
(iv) preserve and conserve the assets and property of such
institution.
(C) Functions of institution's officers, directors, and
shareholders
The Corporation may, by regulation or order, provide for the
exercise of any function by any member or stockholder,
director, or officer of any insured depository institution for
which the Corporation has been appointed conservator or
receiver.
(D) Powers as conservator
The Corporation may, as conservator, take such action as may
be -
(i) necessary to put the insured depository institution in
a sound and solvent condition; and
(ii) appropriate to carry on the business of the
institution and preserve and conserve the assets and property
of the institution.
(E) Additional powers as receiver
The Corporation may (subject to the provisions of section
1831q of this title), as receiver, place the insured depository
institution in liquidation and proceed to realize upon the
assets of the institution, having due regard to the conditions
of credit in the locality.
(F) Organization of new institutions
The Corporation may, as receiver -
(i) with respect to savings associations and by application
to the Director of the Office of Thrift Supervision, organize
a new Federal savings association to take over such assets or
such liabilities as the Corporation may determine to be
appropriate; and
(ii) with respect to any insured bank, organize a new
national bank under subsection (m) of this section or a
bridge bank under subsection (n) of this section.
(G) Merger; transfer of assets and liabilities
(i) In general
The Corporation may, as conservator or receiver -
(I) merge the insured depository institution with another
insured depository institution; or
(II) subject to clause (ii), transfer any asset or
liability of the institution in default (including assets
and liabilities associated with any trust business) without
any approval, assignment, or consent with respect to such
transfer.
(ii) Approval by appropriate Federal banking agency
No transfer described in clause (i)(II) may be made to
another depository institution (other than a new bank or a
bridge bank established pursuant to subsection (m) or (n) of
this section) without the approval of the appropriate Federal
banking agency for such institution.
(H) Payment of valid obligations
The Corporation, as conservator or receiver, shall pay all
valid obligations of the insured depository institution in
accordance with the prescriptions and limitations of this
chapter.
(I) Subpoena authority
(i) In general
The Corporation may, as conservator, receiver, or exclusive
manager and for purposes of carrying out any power,
authority, or duty with respect to an insured depository
institution (including determining any claim against the
institution and determining and realizing upon any asset of
any person in the course of collecting money due the
institution), exercise any power established under section
1818(n) of this title, and the provisions of such section
shall apply with respect to the exercise of any such power
under this subparagraph in the same manner as such provisions
apply under such section.
(ii) Authority of Board of Directors
A subpoena or subpoena duces tecum may be issued under
clause (i) only by, or with the written approval of, the
Board of Directors or their designees (or, in the case of a
subpoena or subpoena duces tecum issued by the Resolution
Trust Corporation under this subparagraph and section
1441a(b)(4) (!2) of this title, only by, or with the written
approval of, the Board of Directors of such Corporation or
their designees).
(iii) Rule of construction
This subsection shall not be construed as limiting any
rights that the Corporation, in any capacity, might otherwise
have under section 1820(c) of this title.
(J) Incidental powers
The Corporation may, as conservator or receiver -
(i) exercise all powers and authorities specifically
granted to conservators or receivers, respectively, under
this chapter and such incidental powers as shall be necessary
to carry out such powers; and
(ii) take any action authorized by this chapter,
which the Corporation determines is in the best interests of
the depository institution, its depositors, or the Corporation.
(K) Utilization of private sector
In carrying out its responsibilities in the management and
disposition of assets from insured depository institutions, as
conservator, receiver, or in its corporate capacity, the
Corporation shall utilize the services of private persons,
including real estate and loan portfolio asset management,
property management, auction marketing, legal, and brokerage
services, only if such services are available in the private
sector and the Corporation determines utilization of such
services is the most practicable, efficient, and cost
effective.
(3) Authority of receiver to determine claims
(A) In general
The Corporation may, as receiver, determine claims in
accordance with the requirements of this subsection and
regulations prescribed under paragraph (4).
(B) Notice requirements
The receiver, in any case involving the liquidation or
winding up of the affairs of a closed depository institution,
shall -
(i) promptly publish a notice to the depository
institution's creditors to present their claims, together
with proof, to the receiver by a date specified in the notice
which shall be not less than 90 days after the publication of
such notice; and
(ii) republish such notice approximately 1 month and 2
months, respectively, after the publication under clause (i).
(C) Mailing required
The receiver shall mail a notice similar to the notice
published under subparagraph (B)(i) at the time of such
publication to any creditor shown on the institution's books -
(i) at the creditor's last address appearing in such books;
or
(ii) upon discovery of the name and address of a claimant
not appearing on the institution's books within 30 days after
the discovery of such name and address.
(4) Rulemaking authority relating to determination of claims
(A) In general
The Corporation may prescribe regulations regarding the
allowance or disallowance of claims by the receiver and
providing for administrative determination of claims and review
of such determination.
(B) Final settlement payment procedure
(i) In general
In the handling of receiverships of insured depository
institutions, to maintain essential liquidity and to prevent
financial disruption, the Corporation may, after the
declaration of an institution's insolvency, settle all
uninsured and unsecured claims on the receivership with a
final settlement payment which shall constitute full payment
and disposition of the Corporation's obligations to such
claimants.
(ii) Final settlement payment
For purposes of clause (i), a final settlement payment
shall be payment of an amount equal to the product of the
final settlement payment rate and the amount of the uninsured
and unsecured claim on the receivership; and
(iii) Final settlement payment rate
For purposes of clause (ii), the final settlement payment
rate shall be a percentage rate reflecting an average of the
Corporation's receivership recovery experience, determined by
the Corporation in such a way that over such time period as
the Corporation may deem appropriate, the Corporation in
total will receive no more or less than it would have
received in total as a general creditor standing in the place
of insured depositors in each specific receivership.
(iv) Corporation authority
The Corporation may undertake such supervisory actions and
promulgate such regulations as may be necessary to assure
that the requirements of this section can be implemented with
respect to each insured depository institution in the event
of its insolvency.
(5) Procedures for determination of claims
(A) Determination period
(i) In general
Before the end of the 180-day period beginning on the date
any claim against a depository institution is filed with the
Corporation as receiver, the Corporation shall determine
whether to allow or disallow the claim and shall notify the
claimant of any determination with respect to such claim.
(ii) Extension of time
The period described in clause (i) may be extended by a
written agreement between the claimant and the Corporation.
(iii) Mailing of notice sufficient
The requirements of clause (i) shall be deemed to be
satisfied if the notice of any determination with respect to
any claim is mailed to the last address of the claimant which
appears -
(I) on the depository institution's books;
(II) in the claim filed by the claimant; or
(III) in documents submitted in proof of the claim.
(iv) Contents of notice of disallowance
If any claim filed under clause (i) is disallowed, the
notice to the claimant shall contain -
(I) a statement of each reason for the disallowance; and
(II) the procedures available for obtaining agency review
of the determination to disallow the claim or judicial
determination of the claim.
(B) Allowance of proven claims
The receiver shall allow any claim received on or before the
date specified in the notice published under paragraph
(3)(B)(i) by the receiver from any claimant which is proved to
the satisfaction of the receiver.
(C) Disallowance of claims filed after end of filing period
(i) In general
Except as provided in clause (ii), claims filed after the
date specified in the notice published under paragraph
(3)(B)(i) shall be disallowed and such disallowance shall be
final.
(ii) Certain exceptions
Clause (i) shall not apply with respect to any claim filed
by any claimant after the date specified in the notice
published under paragraph (3)(B)(i) and such claim may be
considered by the receiver if -
(I) the claimant did not receive notice of the
appointment of the receiver in time to file such claim
before such date; and
(II) such claim is filed in time to permit payment of
such claim.
(D) Authority to disallow claims
(i) In general
The receiver may disallow any portion of any claim by a
creditor or claim of security, preference, or priority which
is not proved to the satisfaction of the receiver.
(ii) Payments to less than fully secured creditors
In the case of a claim of a creditor against an insured
depository institution which is secured by any property or
other asset of such institution, any receiver appointed for
any insured depository institution -
(I) may treat the portion of such claim which exceeds an
amount equal to the fair market value of such property or
other asset as an unsecured claim against the institution;
and
(II) may not make any payment with respect to such
unsecured portion of the claim other than in connection
with the disposition of all claims of unsecured creditors
of the institution.
(iii) Exceptions
No provision of this paragraph shall apply with respect to -

(I) any extension of credit from any Federal home loan
bank or Federal Reserve bank to any insured depository
institution; or
(II) any security interest in the assets of the
institution securing any such extension of credit.
(E) No judicial review of determination pursuant to
subparagraph (D)
No court may review the Corporation's determination pursuant
to subparagraph (D) to disallow a claim.
(F) Legal effect of filing
(i) Statute of limitation tolled
For purposes of any applicable statute of limitations, the
filing of a claim with the receiver shall constitute a
commencement of an action.
(ii) No prejudice to other actions
Subject to paragraph (12), the filing of a claim with the
receiver shall not prejudice any right of the claimant to
continue any action which was filed before the appointment of
the receiver.
(6) Provision for agency review or judicial determination of
claims
(A) In general
Before the end of the 60-day period beginning on the earlier
of -
(i) the end of the period described in paragraph (5)(A)(i)
with respect to any claim against a depository institution
for which the Corporation is receiver; or
(ii) the date of any notice of disallowance of such claim
pursuant to paragraph (5)(A)(i),
the claimant may request administrative review of the claim in
accordance with subparagraph (A) or (B) of paragraph (7) or
file suit on such claim (or continue an action commenced before
the appointment of the receiver) in the district or territorial
court of the United States for the district within which the
depository institution's principal place of business is located
or the United States District Court for the District of
Columbia (and such court shall have jurisdiction to hear such
claim).
(B) Statute of limitations
If any claimant fails to -
(i) request administrative review of any claim in
accordance with subparagraph (A) or (B) of paragraph (7); or
(ii) file suit on such claim (or continue an action
commenced before the appointment of the receiver),
before the end of the 60-day period described in subparagraph
(A), the claim shall be deemed to be disallowed (other than any
portion of such claim which was allowed by the receiver) as of
the end of such period, such disallowance shall be final, and
the claimant shall have no further rights or remedies with
respect to such claim.
(7) Review of claims
(A) Administrative hearing
If any claimant requests review under this subparagraph in
lieu of filing or continuing any action under paragraph (6) and
the Corporation agrees to such request, the Corporation shall
consider the claim after opportunity for a hearing on the
record. The final determination of the Corporation with respect
to such claim shall be subject to judicial review under chapter
7 of title 5.
(B) Other review procedures
(i) In general
The Corporation shall also establish such alternative
dispute resolution processes as may be appropriate for the
resolution of claims filed under paragraph (5)(A)(i).
(ii) Criteria
In establishing alternative dispute resolution processes,
the Corporation shall strive for procedures which are
expeditious, fair, independent, and low cost.
(iii) Voluntary binding or nonbinding procedures
The Corporation may establish both binding and nonbinding
processes, which may be conducted by any government or
private party, but all parties, including the claimant and
the Corporation, must agree to the use of the process in a
particular case.
(iv) Consideration of incentives
The Corporation shall seek to develop incentives for
claimants to participate in the alternative dispute
resolution process.
(8) Expedited determination of claims
(A) Establishment required
The Corporation shall establish a procedure for expedited
relief outside of the routine claims process established under
paragraph (5) for claimants who -
(i) allege the existence of legally valid and enforceable
or perfected security interests in assets of any depository
institution for which the Corporation has been appointed
receiver; and
(ii) allege that irreparable injury will occur if the
routine claims procedure is followed.
(B) Determination period
Before the end of the 90-day period beginning on the date any
claim is filed in accordance with the procedures established
pursuant to subparagraph (A), the Corporation shall -
(i) determine -
(I) whether to allow or disallow such claim; or
(II) whether such claim should be determined pursuant to
the procedures established pursuant to paragraph (5); and
(ii) notify the claimant of the determination, and if the
claim is disallowed, provide a statement of each reason for
the disallowance and the procedure for obtaining agency
review or judicial determination.
(C) Period for filing or renewing suit
Any claimant who files a request for expedited relief shall
be permitted to file a suit, or to continue a suit filed before
the appointment of the receiver, seeking a determination of the
claimant's rights with respect to such security interest after
the earlier of -
(i) the end of the 90-day period beginning on the date of
the filing of a request for expedited relief; or
(ii) the date the Corporation denies the claim.
(D) Statute of limitations
If an action described in subparagraph (C) is not filed, or
the motion to renew a previously filed suit is not made, before
the end of the 30-day period beginning on the date on which
such action or motion may be filed in accordance with
subparagraph (B), the claim shall be deemed to be disallowed as
of the end of such period (other than any portion of such claim
which was allowed by the receiver), such disallowance shall be
final, and the claimant shall have no further rights or
remedies with respect to such claim.
(E) Legal effect of filing
(i) Statute of limitation tolled
For purposes of any applicable statute of limitations, the
filing of a claim with the receiver shall constitute a
commencement of an action.
(ii) No prejudice to other actions
Subject to paragraph (12), the filing of a claim with the
receiver shall not prejudice any right of the claimant to
continue any action which was filed before the appointment of
the receiver.
(9) Agreement as basis of claim
(A) Requirements
Except as provided in subparagraph (B), any agreement which
does not meet the requirements set forth in section 1823(e) of
this title shall not form the basis of, or substantially
comprise, a claim against the receiver or the Corporation.
(B) Exception to contemporaneous execution requirement
Notwithstanding section 1823(e)(2) (!3) of this title, any
agreement relating to an extension of credit between a Federal
home loan bank or Federal Reserve bank and any insured
depository institution which was executed before the extension
of credit by such bank to such institution shall be treated as
having been executed contemporaneously with such extension of
credit for purposes of subparagraph (A).
(10) Payment of claims
(A) In general
The receiver may, in the receiver's discretion and to the
extent funds are available, pay creditor claims which are
allowed by the receiver, approved by the Corporation pursuant
to a final determination pursuant to paragraph (7) or (8), or
determined by the final judgment of any court of competent
jurisdiction in such manner and amounts as are authorized under
this chapter.
(B) Payment of dividends on claims
The receiver may, in the receiver's sole discretion, pay
dividends on proved claims at any time, and no liability shall
attach to the Corporation (in such Corporation's corporate
capacity or as receiver), by reason of any such payment, for
failure to pay dividends to a claimant whose claim is not
proved at the time of any such payment.
(C) Rulemaking authority of Corporation
The Corporation may prescribe such rules, including
definitions of terms, as it deems appropriate to establish a
single uniform interest rate for or to make payments of post
insolvency interest to creditors holding proven claims against
the receivership estates of insured Federal or State depository
institutions following satisfaction by the receiver of the
principal amount of all creditor claims.
(11) Depositor preference
(A) In general
Subject to section 1815(e)(2)(C) of this title, amounts
realized from the liquidation or other resolution of any
insured depository institution by any receiver appointed for
such institution shall be distributed to pay claims (other than
secured claims to the extent of any such security) in the
following order of priority:
(i) Administrative expenses of the receiver.
(ii) Any deposit liability of the institution.
(iii) Any other general or senior liability of the
institution (which is not a liability described in clause
(iv) or (v)).
(iv) Any obligation subordinated to depositors or general
creditors (which is not an obligation described in clause
(v)).
(v) Any obligation to shareholders or members arising as a
result of their status as shareholders or members (including
any depository institution holding company or any shareholder
or creditor of such company).
(B) Effect on State law
(i) In general
The provisions of subparagraph (A) shall not supersede the
law of any State except to the extent such law is
inconsistent with the provisions of such subparagraph, and
then only to the extent of the inconsistency.
(ii) Procedure for determination of inconsistency
Upon the Corporation's own motion or upon the request of
any person with a claim described in subparagraph (A) or any
State which is submitted to the Corporation in accordance
with procedures which the Corporation shall prescribe, the
Corporation shall determine whether any provision of the law
of any State is inconsistent with any provision of
subparagraph (A) and the extent of any such inconsistency.
(iii) Judicial review
The final determination of the Corporation under clause
(ii) shall be subject to judicial review under chapter 7 of
title 5.
(C) Accounting report
Any distribution by the Corporation in connection with any
claim described in subparagraph (A)(v) shall be accompanied by
the accounting report required under paragraph (15)(B).
(12) Suspension of legal actions
(A) In general
After the appointment of a conservator or receiver for an
insured depository institution, the conservator or receiver may
request a stay for a period not to exceed -
(i) 45 days, in the case of any conservator; and
(ii) 90 days, in the case of any receiver,
in any judicial action or proceeding to which such institution
is or becomes a party.
(B) Grant of stay by all courts required
Upon receipt of a request by any conservator or receiver
pursuant to subparagraph (A) for a stay of any judicial action
or proceeding in any court with jurisdiction of such action or
proceeding, the court shall grant such stay as to all parties.
(13) Additional rights and duties
(A) Prior final adjudication
The Corporation shall abide by any final unappealable
judgment of any court of competent jurisdiction which was
rendered before the appointment of the Corporation as
conservator or receiver.
(B) Rights and remedies of conservator or receiver
In the event of any appealable judgment, the Corporation as
conservator or receiver shall -
(i) have all the rights and remedies available to the
insured depository institution (before the appointment of
such conservator or receiver) and the Corporation in its
corporate capacity, including removal to Federal court and
all appellate rights; and
(ii) not be required to post any bond in order to pursue
such remedies.
(C) No attachment or execution
No attachment or execution may issue by any court upon assets
in the possession of the receiver.
(D) Limitation on judicial review
Except as otherwise provided in this subsection, no court
shall have jurisdiction over -
(i) any claim or action for payment from, or any action
seeking a determination of rights with respect to, the assets
of any depository institution for which the Corporation has
been appointed receiver, including assets which the
Corporation may acquire from itself as such receiver; or
(ii) any claim relating to any act or omission of such
institution or the Corporation as receiver.
(E) Disposition of assets
In exercising any right, power, privilege, or authority as
conservator or receiver in connection with any sale or
disposition of assets of any insured depository institution for
which the Corporation has been appointed conservator or
receiver, including any sale or disposition of assets acquired
by the Corporation under section 1823(d)(1) of this title, the
Corporation shall conduct its operations in a manner which -
(i) maximizes the net present value return from the sale or
disposition of such assets;
(ii) minimizes the amount of any loss realized in the
resolution of cases;
(iii) ensures adequate competition and fair and consistent
treatment of offerors;
(iv) prohibits discrimination on the basis of race, sex, or
ethnic groups in the solicitation and consideration of
offers; and
(v) maximizes the preservation of the availability and
affordability of residential real property for low- and
moderate-income individuals.
(14) Statute of limitations for actions brought by conservator or
receiver
(A) In general
Notwithstanding any provision of any contract, the applicable
statute of limitations with regard to any action brought by the
Corporation as conservator or receiver shall be -
(i) in the case of any contract claim, the longer of -
(I) the 6-year period beginning on the date the claim
accrues; or
(II) the period applicable under State law; and
(ii) in the case of any tort claim (other than a claim
which is subject to section 1441a(b)(14) of this title), the
longer of -
(I) the 3-year period beginning on the date the claim
accrues; or
(II) the period applicable under State law.
(B) Determination of the date on which a claim accrues
For purposes of subparagraph (A), the date on which the
statute of limitations begins to run on any claim described in
such subparagraph shall be the later of -
(i) the date of the appointment of the Corporation as
conservator or receiver; or
(ii) the date on which the cause of action accrues.
(C) Revival of expired State causes of action
(i) In general
In the case of any tort claim described in clause (ii) for
which the statute of limitation applicable under State law
with respect to such claim has expired not more than 5 years
before the appointment of the Corporation as conservator or
receiver, the Corporation may bring an action as conservator
or receiver on such claim without regard to the expiration of
the statute of limitation applicable under State law.
(ii) Claims described
A tort claim referred to in clause (i) is a claim arising
from fraud, intentional misconduct resulting in unjust
enrichment, or intentional misconduct resulting in
substantial loss to the institution.
(15) Accounting and recordkeeping requirements
(A) In general
The Corporation as conservator or receiver shall, consistent
with the accounting and reporting practices and procedures
established by the Corporation, maintain a full accounting of
each conservatorship and receivership or other disposition of
institutions in default.
(B) Annual accounting or report
With respect to each conservatorship or receivership to which
the Corporation was appointed, the Corporation shall make an
annual accounting or report, as appropriate, available to the
Secretary of the Treasury, the Comptroller General of the
United States, and the authority which appointed the
Corporation as conservator or receiver.
(C) Availability of reports
Any report prepared pursuant to subparagraph (B) shall be
made available by the Corporation upon request to any
shareholder of the depository institution for which the
Corporation was appointed conservator or receiver or any other
member of the public.
(D) Recordkeeping requirement
(i) In general
Except as provided in clause (ii), after the end of the 6-
year period beginning on the date the Corporation is
appointed as receiver of an insured depository institution,
the Corporation may destroy any records of such institution
which the Corporation, in the Corporation's discretion,
determines to be unnecessary unless directed not to do so by
a court of competent jurisdiction or governmental agency, or
prohibited by law.
(ii) Old records
Notwithstanding clause (i), the Corporation may destroy
records of an insured depository institution which are at
least 10 years old as of the date on which the Corporation is
appointed as the receiver of such depository institution in
accordance with clause (i) at any time after such appointment
is final, without regard to the 6-year period of limitation
contained in clause (i).
(16) Contracts with State housing finance authorities
(A) In general
The Corporation may enter into contracts with any State
housing finance authority for the sale of mortgage-related
assets (as such terms are defined in section 1441a-1 of this
title) of any depository institution in default (including
assets and liabilities associated with any trust business),
such contracts to be effective in accordance with their terms
without any further approval, assignment, or consent with
respect thereto.
(B) Factors to consider
In evaluating the disposition of mortgage related assets to
any State housing finance authority the Corporation shall
consider -
(i) the State housing finance authority's ability to
acquire and service current, delinquent, and defaulted
mortgage related assets;
(ii) the State housing finance authority's ability to
further national housing policies;
(iii) the State housing finance authority's sensitivity to
the impact of the sale of mortgage related assets upon the
State and local communities;
(iv) the costs to the Federal Government associated with
alternative ownership or disposition of the mortgage related
assets;
(v) the minimization of future guaranties which may be
required of the Federal Government;
(vi) the maximization of mortgage related asset values; and
(vii) the utilization of institutions currently established
in mortgage related asset market activities.
(17) Fraudulent transfers
(A) In general
The Corporation, as conservator or receiver for any insured
depository institution, and any conservator appointed by the
Comptroller of the Currency or the Director of the Office of
Thrift Supervision may avoid a transfer of any interest of an
institution-affiliated party, or any person who the Corporation
or conservator determines is a debtor of the institution, in
property, or any obligation incurred by such party or person,
that was made within 5 years of the date on which the
Corporation or conservator was appointed conservator or
receiver if such party or person voluntarily or involuntarily
made such transfer or incurred such liability with the intent
to hinder, delay, or defraud the insured depository
institution, the Corporation or other conservator, or any other
appropriate Federal banking agency.
(B) Right of recovery
To the extent a transfer is avoided under subparagraph (A),
the Corporation or any conservator described in such
subparagraph may recover, for the benefit of the insured
depository institution, the property transferred, or, if a
court so orders, the value of such property (at the time of
such transfer) from -
(i) the initial transferee of such transfer or the
institution-affiliated party or person for whose benefit such
transfer was made; or
(ii) any immediate or mediate transferee of any such
initial transferee.
(C) Rights of transferee or obligee
The Corporation or any conservator described in subparagraph
(A) may not recover under subparagraph (B) from -
(i) any transferee that takes for value, including
satisfaction or securing of a present or antecedent debt, in
good faith; or
(ii) any immediate or mediate good faith transferee of such
transferee.
(D) Rights under this paragraph
The rights under this paragraph of the Corporation and any
conservator described in subparagraph (A) shall be superior to
any rights of a trustee or any other party (other than any
party which is a Federal agency) under title 11.
(18) Attachment of assets and other injunctive relief
Subject to paragraph (19), any court of competent jurisdiction
may, at the request of -
(A) the Corporation (in the Corporation's capacity as
conservator or receiver for any insured depository institution
or in the Corporation's corporate capacity with respect to any
asset acquired or liability assumed by the Corporation under
this section or section 1822 or 1823 of this title); or
(B) any conservator appointed by the Comptroller of the
Currency or the Director of the Office of Thrift Supervision,
issue an order in accordance with Rule 65 of the Federal Rules of
Civil Procedure, including an order placing the assets of any
person designated by the Corporation or such conservator under
the control of the court and appointing a trustee to hold such
assets.
(19) Standards
(A) Showing
Rule 65 of the Federal Rules of Civil Procedure shall apply
with respect to any proceeding under paragraph (18) without
regard to the requirement of such rule that the applicant show
that the injury, loss, or damage is irreparable and immediate.
(B) State proceeding
If, in the case of any proceeding in a State court, the court
determines that rules of civil procedure available under the
laws of such State provide substantially similar protections to
such party's right to due process as Rule 65 (as modified with
respect to such proceeding by subparagraph (A)), the relief
sought by the Corporation or a conservator pursuant to
paragraph (18) may be requested under the laws of such State.
(20) Treatment of claims arising from breach of contracts
executed by the receiver or conservator
Notwithstanding any other provision of this subsection, any
final and unappealable judgment for monetary damages entered
against a receiver or conservator for an insured depository
institution for the breach of an agreement executed or approved
by such receiver or conservator after the date of its appointment
shall be paid as an administrative expense of the receiver or
conservator. Nothing in this paragraph shall be construed to
limit the power of a receiver or conservator to exercise any
rights under contract or law, including to terminate, breach,
cancel, or otherwise discontinue such agreement.
(e) Provisions relating to contracts entered into before
appointment of conservator or receiver
(1) Authority to repudiate contracts
In addition to any other rights a conservator or receiver may
have, the conservator or receiver for any insured depository
institution may disaffirm or repudiate any contract or lease -
(A) to which such institution is a party;
(B) the performance of which the conservator or receiver, in
the conservator's or receiver's discretion, determines to be
burdensome; and
(C) the disaffirmance or repudiation of which the conservator
or receiver determines, in the conservator's or receiver's
discretion, will promote the orderly administration of the
institution's affairs.
(2) Timing of repudiation
The conservator or receiver appointed for any insured
depository institution in accordance with subsection (c) of this
section shall determine whether or not to exercise the rights of
repudiation under this subsection within a reasonable period
following such appointment.
(3) Claims for damages for repudiation
(A) In general
Except as otherwise provided in subparagraph (C) and
paragraphs (4), (5), and (6), the liability of the conservator
or receiver for the disaffirmance or repudiation of any
contract pursuant to paragraph (1) shall be -
(i) limited to actual direct compensatory damages; and
(ii) determined as of -
(I) the date of the appointment of the conservator or
receiver; or
(II) in the case of any contract or agreement referred to
in paragraph (8), the date of the disaffirmance or
repudiation of such contract or agreement.
(B) No liability for other damages
For purposes of subparagraph (A), the term "actual direct
compensatory damages" does not include -
(i) punitive or exemplary damages;
(ii) damages for lost profits or opportunity; or
(iii) damages for pain and suffering.
(C) Measure of damages for repudiation of financial contracts
In the case of any qualified financial contract or agreement
to which paragraph (8) applies, compensatory damages shall be -

(i) deemed to include normal and reasonable costs of cover
or other reasonable measures of damages utilized in the
industries for such contract and agreement claims; and
(ii) paid in accordance with this subsection and subsection
(i) of this section except as otherwise specifically provided
in this section.
(4) Leases under which the institution is the lessee
(A) In general
If the conservator or receiver disaffirms or repudiates a
lease under which the insured depository institution was the
lessee, the conservator or receiver shall not be liable for any
damages (other than damages determined pursuant to subparagraph
(B)) for the disaffirmance or repudiation of such lease.
(B) Payments of rent
Notwithstanding subparagraph (A), the lessor under a lease to
which such subparagraph applies shall -
(i) be entitled to the contractual rent accruing before the
later of the date -
(I) the notice of disaffirmance or repudiation is mailed;
or
(II) the disaffirmance or repudiation becomes effective,
unless the lessor is in default or breach of the terms of the
lease;
(ii) have no claim for damages under any acceleration
clause or other penalty provision in the lease; and
(iii) have a claim for any unpaid rent, subject to all
appropriate offsets and defenses, due as of the date of the
appointment which shall be paid in accordance with this
subsection and subsection (i) of this section.
(5) Leases under which the institution is the lessor
(A) In general
If the conservator or receiver repudiates an unexpired
written lease of real property of the insured depository
institution under which the institution is the lessor and the
lessee is not, as of the date of such repudiation, in default,
the lessee under such lease may either -
(i) treat the lease as terminated by such repudiation; or
(ii) remain in possession of the leasehold interest for the
balance of the term of the lease unless the lessee defaults
under the terms of the lease after the date of such
repudiation.
(B) Provisions applicable to lessee remaining in possession
If any lessee under a lease described in subparagraph (A)
remains in possession of a leasehold interest pursuant to
clause (ii) of such subparagraph -
(i) the lessee -
(I) shall continue to pay the contractual rent pursuant
to the terms of the lease after the date of the repudiation
of such lease;
(II) may offset against any rent payment which accrues
after the date of the repudiation of the lease, any damages
which accrue after such date due to the nonperformance of
any obligation of the insured depository institution under
the lease after such date; and
(ii) the conservator or receiver shall not be liable to the
lessee for any damages arising after such date as a result of
the repudiation other than the amount of any offset allowed
under clause (i)(II).
(6) Contracts for the sale of real property
(A) In general
If the conservator or receiver repudiates any contract (which
meets the requirements of each paragraph of section 1823(e) of
this title) for the sale of real property and the purchaser of
such real property under such contract is in possession and is
not, as of the date of such repudiation, in default, such
purchaser may either -
(i) treat the contract as terminated by such repudiation;
or
(ii) remain in possession of such real property.
(B) Provisions applicable to purchaser remaining in possession
If any purchaser of real property under any contract
described in subparagraph (A) remains in possession of such
property pursuant to clause (ii) of such subparagraph -
(i) the purchaser -
(I) shall continue to make all payments due under the
contract after the date of the repudiation of the contract;
and
(II) may offset against any such payments any damages
which accrue after such date due to the nonperformance
(after such date) of any obligation of the depository
institution under the contract; and
(ii) the conservator or receiver shall -
(I) not be liable to the purchaser for any damages
arising after such date as a result of the repudiation
other than the amount of any offset allowed under clause
(i)(II);
(II) deliver title to the purchaser in accordance with
the provisions of the contract; and
(III) have no obligation under the contract other than
the performance required under subclause (II).
(C) Assignment and sale allowed
(i) In general
No provision of this paragraph shall be construed as
limiting the right of the conservator or receiver to assign
the contract described in subparagraph (A) and sell the
property subject to the contract and the provisions of this
paragraph.
(ii) No liability after assignment and sale
If an assignment and sale described in clause (i) is
consummated, the conservator or receiver shall have no
further liability under the contract described in
subparagraph (A) or with respect to the real property which
was the subject of such contract.
(7) Provisions applicable to service contracts
(A) Services performed before appointment
In the case of any contract for services between any person
and any insured depository institution for which the
Corporation has been appointed conservator or receiver, any
claim of such person for services performed before the
appointment of the conservator or the receiver shall be -
(i) a claim to be paid in accordance with subsections (d)
and (i) of this section; and
(ii) deemed to have arisen as of the date the conservator
or receiver was appointed.
(B) Services performed after appointment and prior to
repudiation
If, in the case of any contract for services described in
subparagraph (A), the conservator or receiver accepts
performance by the other person before the conservator or
receiver makes any determination to exercise the right of
repudiation of such contract under this section -
(i) the other party shall be paid under the terms of the
contract for the services performed; and
(ii) the amount of such payment shall be treated as an
administrative expense of the conservatorship or
receivership.
(C) Acceptance of performance no bar to subsequent repudiation
The acceptance by any conservator or receiver of services
referred to in subparagraph (B) in connection with a contract
described in such subparagraph shall not affect the right of
the conservator or receiver to repudiate such contract under
this section at any time after such performance.
(8) Certain qualified financial contracts
(A) Rights of parties to contracts
Subject to paragraphs (9) and (10) of this subsection and
notwithstanding any other provision of this chapter (other than
subsection (d)(9) of this section and section 1823(e) of this
title), any other Federal law, or the law of any State, no
person shall be stayed or prohibited from exercising -
(i) any right such person has to cause the termination,
liquidation, or acceleration of any qualified financial
contract with an insured depository institution which arises
upon the appointment of the Corporation as receiver for such
institution at any time after such appointment;
(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); (!4)
(iii) any right to offset or net out any termination value,
payment amount, or other transfer obligation arising under or
in connection with 1 or more contracts and agreements
described in clause (i), including any master agreement for
such contracts or agreements.
(B) Applicability of other provisions
Subsection (d)(12) of this section shall apply in the case of
any judicial action or proceeding brought against any receiver
referred to in subparagraph (A), or the insured depository
institution for which such receiver was appointed, by any party
to a contract or agreement described in subparagraph (A)(i)
with such institution.
(C) Certain transfers not avoidable
(i) In general
Notwithstanding paragraph (11), section 91 of this title or
any other Federal or State law relating to the avoidance of
preferential or fraudulent transfers, the Corporation,
whether acting as such or as conservator or receiver of an
insured depository institution, may not avoid any transfer of
money or other property in connection with any qualified
financial contract with an insured depository institution.
(ii) Exception for certain transfers
Clause (i) shall not apply to any transfer of money or
other property in connection with any qualified financial
contract with an insured depository institution if the
Corporation determines that the transferee had actual intent
to hinder, delay, or defraud such institution, the creditors
of such institution, or any conservator or receiver appointed
for such institution.
(D) Certain contracts and agreements defined
For purposes of this subsection, the following definitions
shall apply:
(i) Qualified financial contract
The term "qualified financial contract" means any
securities contract, commodity contract, forward contract,
repurchase agreement, swap agreement, and any similar
agreement that the Corporation determines by regulation,
resolution, or order to be a qualified financial contract for
purposes of this paragraph.
(ii) Securities contract
The term "securities contract" -
(I) means a contract for the purchase, sale, or loan of a
security, a certificate of deposit, a mortgage loan, 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 clause (v));
(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;
(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
subclauses (I) through (XII) (other than subclause (II));
(!5)
(V) means any margin loan;
(VI) means any extension of credit for the clearance or
settlement of securities transactions;
(VII) means any loan transaction coupled with a
securities collar transaction, any prepaid securities
forward transaction, or any total return swap transaction
coupled with a securities sale transaction;
(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 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.
(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.
(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,(!6) a
repurchase or reverse repurchase transaction (whether or
not such repurchase or reverse repurchase transaction is a
"repurchase agreement", as defined in clause (v)),
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.
(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 [15 U.S.C.
78a et seq.]), 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).
(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; 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
(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 Gramm-Leach-Bliley Act, the Legal Certainty for
Bank Products Act of 2000 [7 U.S.C. 27 to 27f], the
securities laws (as such term is defined in section 3(a)(47)
of the Securities Exchange Act of 1934 [15 U.S.C.
78c(a)(47)]) and the Commodity Exchange Act [7 U.S.C. 1 et
seq.].
(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.
(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.
(ix) Person
The term "person" includes any governmental entity in
addition to any entity included in the definition of such
term in section 1 of title 1.
(E) Certain protections in event of appointment of conservator
Notwithstanding any other provision of this chapter (other
than subsections (d)(9) and (e)(10) of this section, and
section 1823(e) of this title), any other Federal law, or the
law of any State, no person shall be stayed or prohibited from
exercising -
(i) any right such person has to cause the termination,
liquidation, or acceleration of any qualified financial
contract with a depository institution in a conservatorship
based upon a default under such financial contract which is
enforceable under applicable noninsolvency law;
(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); (!7)
(iii) any right to offset or net out any termination
values, payment amounts, or other transfer obligations
arising under or in connection with such qualified financial
contracts.
(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 4403 and 4404 of this title, no walkaway
clause shall be enforceable in a qualified financial contract
of an insured depository institution in default.
(ii) Limited suspension of certain obligations
In the case of a qualified financial contract referred to
in clause (i), any payment or delivery obligations otherwise
due from a party pursuant to the qualified financial contract
shall be suspended from the time the receiver is appointed
until the earlier of -
(I) the time such party receives notice that such
contract has been transferred pursuant to subparagraph (A);
or
(II) 5:00 p.m. (eastern time) on the business day
following the date of the appointment of the receiver.
(iii) Walkaway clause defined
For purposes of this subparagraph, the term "walkaway
clause" means any provision in a qualified financial contract
that suspends, conditions, or extinguishes a payment
obligation of a party, in whole or in part, or does not
create a payment obligation of a party that would otherwise
exist, solely because of such party's status as a
nondefaulting party in connection with the insolvency of an
insured depository institution that is a party to the
contract or the appointment of or the exercise of rights or
powers by a conservator or receiver of such depository
institution, and not as a result of a party's exercise of any
right to offset, setoff, or net obligations that exist under
the contract, any other contract between those parties, or
applicable law.
(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 1831i of this title).
(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 4402 of this
title.
(10) Notification of transfer
(A) In general
If -
(i) the conservator or receiver for an insured depository
institution in default makes any transfer of the assets and
liabilities of such institution; and
(ii) the transfer includes any qualified financial
contract,
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.
(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 4403 or 4404 of this title, 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 4403 or 4404 of this title, 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.
(D) "Business day" defined
For purposes of this paragraph, the term "business day" means
any day other than any Saturday, Sunday, or any day on which
either the New York Stock Exchange or the Federal Reserve Bank
of New York is closed.
(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).
(12) Certain security interests not avoidable
No provision of this subsection shall be construed as
permitting the avoidance of any legally enforceable or perfected
security interest in any of the assets of any depository
institution except where such an interest is taken in
contemplation of the institution's insolvency or with the intent
to hinder, delay, or defraud the institution or the creditors of
such institution.
(13) Authority to enforce contracts
(A) In general
The conservator or receiver may enforce any contract, other
than a director's or officer's liability insurance contract or
a depository institution bond, entered into by the depository
institution notwithstanding any provision of the contract
providing for termination, default, acceleration, or exercise
of rights upon, or solely by reason of, insolvency or the
appointment of or the exercise of rights or powers by a
conservator or receiver.
(B) Certain rights not affected
No provision of this paragraph may be construed as impairing
or affecting any right of the conservator or receiver to
enforce or recover under a director's or officer's liability
insurance contract or depository institution bond under other
applicable law.
(C) Consent requirement
(i) In general
Except as otherwise provided by this section or section
1825 of this title, no person may exercise any right or power
to terminate, accelerate, or declare a default under any
contract to which the depository institution is a party, or
to obtain possession of or exercise control over any property
of the institution or affect any contractual rights of the
institution, without the consent of the conservator or
receiver, as appropriate, during the 45-day period beginning
on the date of the appointment of the conservator, or during
the 90-day period beginning on the date of the appointment of
the receiver, as applicable.
(ii) Certain exceptions
No provision of this subparagraph shall apply to a director
or officer liability insurance contract or a depository
institution bond, to the rights of parties to certain
qualified financial contracts pursuant to paragraph (8), or
to the rights of parties to netting contracts pursuant to
subtitle A of title IV of the Federal Deposit Insurance
Corporation Improvement Act of 1991 (12 U.S.C. 4401 et seq.),
or shall be construed as permitting the conservator or
receiver to fail to comply with otherwise enforceable
provisions of such contract.
(iii) Rule of construction
Nothing in this subparagraph shall be construed to limit or
otherwise affect the applicability of title 11.
(14) Exception for Federal Reserve and Federal home loan banks
No provision of this subsection shall apply with respect to -
(A) any extension of credit from any Federal home loan bank
or Federal Reserve bank to any insured depository institution;
or
(B) any security interest in the assets of the institution
securing any such extension of credit.
(15) Selling credit card accounts receivable
(A) Notification required
An undercapitalized insured depository institution (as
defined in section 1831o of this title) shall notify the
Corporation in writing before entering into an agreement to
sell credit card accounts receivable.
(B) Waiver by Corporation
The Corporation may at any time, in its sole discretion and
upon such terms as it may prescribe, waive its right to
repudiate an agreement to sell credit card accounts receivable
if the Corporation -
(i) determines that the waiver is in the best interests of
the Deposit Insurance Fund; and
(ii) provides a written waiver to the selling institution.
(C) Effect of waiver on successors
(i) In general
If, under subparagraph (B), the Corporation has waived its
right to repudiate an agreement to sell credit card accounts
receivable -
(I) any provision of the agreement that restricts
solicitation of a credit card customer of the selling
institution, or the use of a credit card customer list of
the institution, shall bind any receiver or conservator of
the institution; and
(II) the Corporation shall require any acquirer of the
selling institution, or of substantially all of the selling
institution's assets or liabilities, to agree to be bound
by a provision described in subclause (I) as if the
acquirer were the selling institution.
(ii) Exception
Clause (i)(II) does not -
(I) restrict the acquirer's authority to offer any
product or service to any person identified without using a
list of the selling institution's customers in violation of
the agreement;
(II) require the acquirer to restrict any preexisting
relationship between the acquirer and a customer; or
(III) apply to any transaction in which the acquirer
acquires only insured deposits.
(D) Waiver not actionable
The Corporation shall not, in any capacity, be liable to any
person for damages resulting from the waiver of or failure to
waive the Corporation's right under this section to repudiate
any contract or lease, including an agreement to sell credit
card accounts receivable. No court shall issue any order
affecting any such waiver or failure to waive.
(E) Other authority not affected
This paragraph does not limit any other authority of the
Corporation to waive the Corporation's right to repudiate an
agreement or lease under this section.
(16) Certain credit card customer lists protected
(A) In general
If any insured depository institution sells credit card
accounts receivable under an agreement negotiated at arm's
length that provides for the sale of the institution's credit
card customer list, the Corporation shall prohibit any party to
a transaction with respect to the institution under this
section or section 1823 of this title from using the list,
except as permitted under the agreement.
(B) Fraudulent transactions excluded
Subparagraph (A) does not limit the Corporation's authority
to repudiate any agreement entered into with the intent to
hinder, delay, or defraud the institution, the institution's
creditors, or the Corporation.
(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 [7 U.S.C.
27 to 27f], the securities laws (as that term is defined in
section 3(a)(47) of the Securities Exchange Act of 1934 [15
U.S.C. 78c(a)(47)]), and the Commodity Exchange Act [7 U.S.C. 1
et seq.].
(f) Payment of insured deposits
(1) In general
In case of the liquidation of, or other closing or winding up
of the affairs of, any insured depository institution, payment of
the insured deposits in such institution shall be made by the
Corporation as soon as possible, subject to the provisions of
subsection (g) of this section, either by cash or by making
available to each depositor a transferred deposit in a new
insured depository institution in the same community or in
another insured depository institution in an amount equal to the
insured deposit of such depositor.
(2) Proof of claims
The Corporation, in its discretion, may require proof of claims
to be filed and may approve or reject such claims for insured
deposits.
(3) Resolution of disputes
A determination by the Corporation regarding any claim for
insurance coverage shall be treated as a final determination for
purposes of this section. In its discretion, the Corporation may
promulgate regulations prescribing procedures for resolving any
disputed claim relating to any insured deposit or any
determination of insurance coverage with respect to any deposit.
(4) Review of Corporation determination
A final determination made by the Corporation regarding any
claim for insurance coverage shall be a final agency action
reviewable in accordance with chapter 7 of title 5 by the United
States district court for the Federal judicial district where the
principal place of business of the depository institution is
located.
(5) Statute of limitations
Any request for review of a final determination by the
Corporation regarding any claim for insurance coverage shall be
filed with the appropriate United States district court not later
than 60 days after the date on which such determination is
issued.
(g) Subrogation of Corporation
(1) In general
Notwithstanding any other provision of Federal law, the law of
any State, or the constitution of any State, the Corporation,
upon the payment to any depositor as provided in subsection (f)
of this section in connection with any insured depository
institution or insured branch described in such subsection or the
assumption of any deposit in such institution or branch by
another insured depository institution pursuant to this section
or section 1823 of this title, shall be subrogated to all rights
of the depositor against such institution or branch to the extent
of such payment or assumption.
(2) Dividends on subrogated amounts
The subrogation of the Corporation under paragraph (1) with
respect to any insured depository institution shall include the
right on the part of the Corporation to receive the same
dividends from the proceeds of the assets of such institution and
recoveries on account of stockholders' liability as would have
been payable to the depositor on a claim for the insured deposit,
but such depositor shall retain such claim for any uninsured or
unassumed portion of the deposit.
(3) Waiver of certain claims
With respect to any bank which closes after May 25, 1938, the
Corporation shall waive, in favor only of any person against whom
stockholders' individual liability may be asserted, any claim on
account of such liability in excess of the liability, if any, to
the bank or its creditors, for the amount unpaid upon such stock
in such bank; but any such waiver shall be effected in such
manner and on such terms and conditions as will not increase
recoveries or dividends on account of claims to which the
Corporation is not subrogated.
(4) Applicability of State law
Subject to subsection (d)(11) of this section, if the
Corporation is appointed pursuant to subsection (c)(3) of this
section, or determines not to invoke the authority conferred in
subsection (c)(4) of this section, the rights of depositors and
other creditors of any State depository institution shall be
determined in accordance with the applicable provisions of State
law.
(h) Conditions applicable to resolution proceedings
(1) Consideration of local economic impact required
The Corporation shall fully consider the adverse economic
impact on local communities, including businesses and farms, of
actions to be taken by it during the administration and
liquidation of loans of a depository institution in default.
(2) Actions to alleviate adverse economic impact to be considered
The actions which the Corporation shall consider include the
release of proceeds from the sale of products and services for
family living and business expenses and shortening the undue
length of the decisionmaking process for the acceptance of offers
of settlement contingent upon third party financing.
(3) Guidelines required
The Corporation shall adopt and publish procedures and
guidelines to minimize adverse economic effects caused by its
actions on individual debtors in the community.
(4) Financial services industry impact analysis
After the appointment of the Corporation as conservator or
receiver for any insured depository institution and before taking
any action under this section or section 1823 of this title in
connection with the resolution of such institution, the
Corporation shall -
(A) evaluate the likely impact of the means of resolution,
and any action which the Corporation may take in connection
with such resolution, on the viability of other insured
depository institutions in the same community; and
(B) take such evaluation into account in determining the
means for resolving the institution and establishing the terms
and conditions for any such action.
(i) Valuation of claims in default
(1) In general
Notwithstanding any other provision of Federal law or the law
of any State and regardless of the method which the Corporation
determines to utilize with respect to an insured depository
institution in default or in danger of default, including
transactions authorized under subsection (n) of this section and
section 1823(c) of this title, this subsection shall govern the
rights of the creditors (other than insured depositors) of such
institution.
(2) Maximum liability
The maximum liability of the Corporation, acting as receiver or
in any other capacity, to any person having a claim against the
receiver or the insured depository institution for which such
receiver is appointed shall equal the amount such claimant would
have received if the Corporation had liquidated the assets and
liabilities of such institution without exercising the
Corporation's authority under subsection (n) of this section or
section 1823 of this title.
(3) Additional payments authorized
(A) In general
The Corporation may, in its discretion and in the interests
of minimizing its losses, use its own resources to make
additional payments or credit additional amounts to or with
respect to or for the account of any claimant or category of
claimants. Notwithstanding any other provision of Federal or
State law, or the constitution of any State, the Corporation
shall not be obligated, as a result of having made any such
payment or credited any such amount to or with respect to or
for the account of any claimant or category of claimants, to
make payments to any other claimant or category of claimants.
(B) Manner of payment
The Corporation may make the payments or credit the amounts
specified in subparagraph (A) directly to the claimants or may
make such payments or credit such amounts to an open insured
depository institution to induce such institution to accept
liability for such claims.
(j) Limitation on court action
Except as provided in this section, no court may take any action,
except at the request of the Board of Directors by regulation or
order, to restrain or affect the exercise of powers or functions of
the Corporation as a conservator or a receiver.
(k) Liability of directors and officers
A director or officer of an insured depository institution may be
held personally liable for monetary damages in any civil action by,
on behalf of, or at the request or direction of the Corporation,
which action is prosecuted wholly or partially for the benefit of
the Corporation -
(1) acting as conservator or receiver of such institution,
(2) acting based upon a suit, claim, or cause of action
purchased from, assigned by, or otherwise conveyed by such
receiver or conservator, or
(3) acting based upon a suit, claim, or cause of action
purchased from, assigned by, or otherwise conveyed in whole or in
part by an insured depository institution or its affiliate in
connection with assistance provided under section 1823 of this
title,
for gross negligence, including any similar conduct or conduct that
demonstrates a greater disregard of a duty of care (than gross
negligence) including intentional tortious conduct, as such terms
are defined and determined under applicable State law. Nothing in
this paragraph shall impair or affect any right of the Corporation
under other applicable law.
(l) Damages
In any proceeding related to any claim against an insured
depository institution's director, officer, employee, agent,
attorney, accountant, appraiser, or any other party employed by or
providing services to an insured depository institution,
recoverable damages determined to result from the improvident or
otherwise improper use or investment of any insured depository
institution's assets shall include principal losses and appropriate
interest.
(m) New banks
(1) Organization authorized
As soon as possible after the default of an insured bank, the
Corporation, if it finds that it is advisable and in the interest
of the depositors of the insured bank in default or the public
shall organize a new national bank in the same community as the
bank in default to assume the insured deposits of such bank in
default and otherwise to perform temporarily the functions
hereinafter provided for.
(2) Articles of association
The articles of association and the organization certificate of
the new bank shall be executed by representatives designated by
the Corporation.
(3) Capital stock
No capital stock need be paid in by the Corporation.
(4) Executive officer
The new bank shall not have a board of directors, but shall be
managed by an executive officer appointed by the Board of
Directors of the Corporation who shall be subject to its
directions.
(5) Subject to laws relating to national banks
In all other respects the new bank shall be organized in
accordance with the then existing provisions of law relating to
the organization of national banking associations.
(6) New deposits
The new bank may, with the approval of the Corporation, accept
new deposits which shall be subject to withdrawal on demand and
which, except where the new bank is the only bank in the
community, shall not exceed an amount equal to the standard
maximum deposit insurance amount from any depositor.
(7) Insured status
The new bank, without application to or approval by the
Corporation, shall be an insured depository institution and shall
maintain on deposit with the Federal Reserve bank of its district
reserves in the amount required by law for member banks, but it
shall not be required to subscribe for stock of the Federal
Reserve bank.
(8) Investments
Funds of the new bank shall be kept on hand in cash, invested
in obligations of the United States or obligations guaranteed as
to principal and interest by the United States, or deposited with
the Corporation, any Federal Reserve bank, or, to the extent of
the insurance coverage on any such deposit, an insured depository
institution.
(9) Conduct of business
The new bank, unless otherwise authorized by the Comptroller of
the Currency, shall transact business only as authorized by this
chapter and as may be incidental to its organization.
(10) Exempt status
Notwithstanding any other provision of Federal or State law,
the new bank, its franchise, property, and income shall be exempt
from all taxation now or hereafter imposed by the United States,
by any territory, dependency, or possession thereof, or by any
State, county, municipality, or local taxing authority.
(11) Transfer of deposits
(A) Upon the organization of a new bank, the Corporation shall
promptly make available to it an amount equal to the estimated
insured deposits of such bank in default plus the estimated
amount of the expenses of operating the new bank, and shall
determine as soon as possible the amount due each depositor for
the depositor's insured deposit in the bank in default, and the
total expenses of operation of the new bank.
(B) Upon such determination, the amounts so estimated and made
available shall be adjusted to conform to the amounts so
determined.
(12) Earnings
Earnings of the new bank shall be paid over or credited to the
Corporation in such adjustment.
(13) Losses
If any new bank, during the period it continues its status as
such, sustains any losses with respect to which it is not
effectively protected except by reason of being an insured bank,
the Corporation shall furnish to it additional funds in the
amount of such losses.
(14) Payment of insured deposits
(A) The new bank shall assume as transferred deposits the
payment of the insured deposits of such bank in default to each
of its depositors.
(B) Of the amounts so made available, the Corporation shall
transfer to the new bank, in cash, such sums as may be necessary
to enable it to meet its expenses of operation and immediate cash
demands on such transferred deposits, and the remainder of such
amounts shall be subject to withdrawal by the new bank on demand.
(15) Issuance of stock
(A) Whenever in the judgment of the Board of Directors it is
desirable to do so, the Corporation shall cause capital stock of
the new bank to be offered for sale on such terms and conditions
as the Board of Directors shall deem advisable in an amount
sufficient, in the opinion of the Board of Directors, to make
possible the conduct of the business of the new bank on a sound
basis, but in no event less than that required by section 51 (!8)
of this title for the organization of a national bank in the
place where such new bank is located.
(B) The stockholders of the insured bank in default shall be
given the first opportunity to purchase any shares of common
stock so offered.
(16) Issuance of certificate
Upon proof that an adequate amount of capital stock in the new
bank has been subscribed and paid for in cash, the Comptroller of
the Currency shall require the articles of association and the
organization certificate to be amended to conform to the
requirements for the organization of a national bank, and
thereafter, when the requirements of law with respect to the
organization of a national bank have been complied with, the
Comptroller of the Currency shall issue to the bank a certificate
of authority to commence business, and thereupon the bank shall
cease to have the status of a new bank, shall be managed by
directors elected by its own shareholders, may exercise all the
powers granted by law, and shall be subject to all provisions of
law relating to national banks. Such bank shall thereafter be an
insured national bank, without certification to or approval by
the Corporation.
(17) Transfer to other institution
If the capital stock of the new bank is not offered for sale,
or if an adequate amount of capital for such new bank is not
subscribed and paid for, the Board of Directors may offer to
transfer its business to any insured depository institution in
the same community which will take over its assets, assume its
liabilities, and pay to the Corporation for such business such
amount as the Board of Directors may deem adequate; or the Board
of Directors in its discretion may change the location of the new
bank to the office of the Corporation or to some other place or
may at any time wind up its affairs as herein provided.
(18) Winding up
Unless the capital stock of the new bank is sold or its assets
are taken over and its liabilities are assumed by an insured
depository institution as above provided within 2 years after the
date of its organization, the Corporation shall wind up the
affairs of such bank, after giving such notice, if any, as the
Comptroller of the Currency may require, and shall certify to the
Comptroller of the Currency the termination of the new bank.
Thereafter the Corporation shall be liable for the obligations of
such bank and shall be the owner of its assets.
(19) Applicability of certain laws
The provisions of sections 181 and 182 of this title shall not
apply to a new bank under this subsection.
(n) Bridge banks
(1) Organization
(A) Purpose
When 1 or more insured banks are in default, or when the
Corporation anticipates that 1 or more insured banks may become
in default, the Corporation may, in its discretion, organize,
and the Office of the Comptroller of the Currency shall
charter, 1 or more national banks with respect thereto with the
powers and attributes of national banking associations, subject
to the provisions of this subsection, to be referred to as
bridge banks.
(B) Authorities
Upon the granting of a charter to a bridge bank, the bridge
bank may -
(i) assume such deposits of such insured bank or banks that
is or are in default or in danger of default as the
Corporation may, in its discretion, determine to be
appropriate, except that if any insured deposits of a bank
are assumed, all insured deposits of that bank shall be
assumed by the bridge bank or another insured depository
institution;
(ii) assume such other liabilities (including liabilities
associated with any trust business) of such insured bank or
banks that is or are in default or in danger of default as
the Corporation may, in its discretion, determine to be
appropriate;
(iii) purchase such assets (including assets associated
with any trust business) of such insured bank or banks that
is or are in default or in danger of default as the
Corporation may, in its discretion, determine to be
appropriate; and
(iv) perform any other temporary function which the
Corporation may, in its discretion, prescribe in accordance
with this chapter.
(C) Articles of association
The articles of association and organization certificate of a
bridge bank as approved by the Corporation shall be executed by
3 representatives designated by the Corporation.
(D) Interim directors
A bridge bank shall have an interim board of directors
consisting of not fewer than 5 nor more than 10 members
appointed by the Corporation.
(E) National bank
A bridge bank shall be organized as a national bank.
(2) Chartering
(A) Conditions
A national bank may be chartered by the Comptroller of the
Currency as a bridge bank only if the Board of Directors
determines that -
(i) the amount which is reasonably necessary to operate
such bridge bank will not exceed the amount which is
reasonably necessary to save the cost of liquidating,
including paying the insured accounts of, 1 or more insured
banks in default or in danger of default with respect to
which the bridge bank is chartered;
(ii) the continued operation of such insured bank or banks
in default or in danger of default with respect to which the
bridge bank is chartered is essential to provide adequate
banking services in the community where each such bank in
default or in danger of default is located; or
(iii) the continued operation of such insured bank or banks
in default or in danger of default with respect to which the
bridge bank is chartered is in the best interest of the
depositors of such bank or banks in default or in danger of
default or the public.
(B) Insured national bank
A bridge bank shall be an insured bank from the time it is
chartered as a national bank.
(C) Bridge bank treated as being in default for certain
purposes
A bridge bank shall be treated as an insured bank in default
at such times and for such purposes as the Corporation may, in
its discretion, determine.
(D) Management
A bridge bank, upon the granting of its charter, shall be
under the management of a board of directors consisting of not
fewer than 5 nor more than 10 members appointed by the
Corporation.
(E) Bylaws
The board of directors of a bridge bank shall adopt such
bylaws as may be approved by the Corporation.
(3) Transfer of assets and liabilities
(A) In general
(i) Transfer upon grant of charter
Upon the granting of a charter to a bridge bank pursuant to
this subsection, the Corporation, as receiver, or any other
receiver appointed with respect to any insured bank in
default with respect to which the bridge bank is chartered
may transfer any assets and liabilities of such bank in
default to the bridge bank in accordance with paragraph (1).
(ii) Subsequent transfers
At any time after a charter is granted to a bridge bank,
the Corporation, as receiver, or any other receiver appointed
with respect to an insured bank in default may transfer any
assets and liabilities of such insured bank in default as the
Corporation may, in its discretion, determine to be
appropriate in accordance with paragraph (1).
(iii) Treatment of trust business
For purposes of this paragraph, the trust business,
including fiduciary appointments, of any insured bank in
default is included among its assets and liabilities.
(iv) Effective without approval
The transfer of any assets or liabilities, including those
associated with any trust business, of an insured bank in
default transferred to a bridge bank shall be effective
without any further approval under Federal or State law,
assignment, or consent with respect thereto.
(B) Intent of Congress regarding continuing operations
It is the intent of the Congress that, in order to prevent
unnecessary hardship or losses to the customers of any insured
bank in default with respect to which a bridge bank is
chartered, especially creditworthy farmers, small businesses,
and households, the Corporation should -
(i) continue to honor commitments made by the bank in
default to creditworthy customers, and
(ii) not interrupt or terminate adequately secured loans
which are transferred under subparagraph (A) and are being
repaid by the debtor in accordance with the terms of the loan
instrument.
(4) Powers of bridge banks
Each bridge bank chartered under this subsection shall have all
corporate powers of, and be subject to the same provisions of law
as, a national bank, except that -
(A) the Corporation may -
(i) remove the interim directors and directors of a bridge
bank;
(ii) fix the compensation of members of the interim board
of directors and the board of directors and senior
management, as determined by the Corporation in its
discretion, of a bridge bank; and
(iii) waive any requirement established under section 71,
72, 73, 74, or 75 of this title (relating to directors of
national banks) or section 71a of this title which would
otherwise be applicable with respect to directors of a bridge
bank by operation of paragraph (2)(B);
(B) the Corporation may indemnify the representatives for
purposes of paragraph (1)(B) and the interim directors,
directors, officers, employees, and agents of a bridge bank on
such terms as the Corporation determines to be appropriate;
(C) no requirement under section 51 (!9) of this title or any
other provision of law relating to the capital of a national
bank shall apply with respect to a bridge bank;
(D) the Comptroller of the Currency may establish a
limitation on the extent to which any person may become
indebted to a bridge bank without regard to the amount of the
bridge bank's capital or surplus;
(E)(i) the board of directors of a bridge bank shall elect a
chairperson who may also serve in the position of chief
executive officer, except that such person shall not serve
either as chairperson or as chief executive officer without the
prior approval of the Corporation; and
(ii) the board of directors of a bridge bank may appoint a
chief executive officer who is not also the chairperson, except
that such person shall not serve as chief executive officer
without the prior approval of the Corporation;
(F) a bridge bank shall not be required to purchase stock of
any Federal Reserve bank;
(G) the Comptroller of the Currency shall waive any
requirement for a fidelity bond with respect to a bridge bank
at the request of the Corporation;
(H) any judicial action to which a bridge bank becomes a
party by virtue of its acquisition of any assets or assumption
of any liabilities of a bank in default shall be stayed from
further proceedings for a period of up to 45 days at the
request of the bridge bank;
(I) no agreement which tends to diminish or defeat the right,
title or interest of a bridge bank in any asset of an insured
bank in default acquired by it shall be valid against the
bridge bank unless such agreement -
(i) is in writing,
(ii) was executed by such insured bank in default and the
person or persons claiming an adverse interest thereunder,
including the obligor, contemporaneously with the acquisition
of the asset by such insured bank in default,
(iii) was approved by the board of directors of such
insured bank in default or its loan committee, which approval
shall be reflected in the minutes of said board or committee,
and
(iv) has been, continuously from the time of its execution,
an official record of such insured bank in default;
(J) notwithstanding section 1823(e)(2) of this title, any
agreement relating to an extension of credit between a Federal
home loan bank or Federal Reserve bank and any insured
depository institution which was executed before the extension
of credit by such bank to such depository institution shall be
treated as having been executed contemporaneously with such
extension of credit for purposes of subparagraph (I); and
(K) except with the prior approval of the Corporation, a
bridge bank may not, in any transaction or series of
transactions, issue capital stock or be a party to any merger,
consolidation, disposition of assets or liabilities, sale or
exchange of capital stock, or similar transaction, or change
its charter.
(5) Capital
(A) No capital required
The Corporation shall not be required to -
(i) issue any capital stock on behalf of a bridge bank
chartered under this subsection; or
(ii) purchase any capital stock of a bridge bank, except
that notwithstanding any other provision of Federal or State
law, the Corporation may purchase and retain capital stock of
a bridge bank in such amounts and on such terms as the
Corporation, in its discretion, determines to be appropriate.
(B) Operating funds in lieu of capital
Upon the organization of a bridge bank, and thereafter, as
the Board of Directors may, in its discretion, determine to be
necessary or advisable, the Corporation may make available to
the bridge bank, upon such terms and conditions and in such
form and amounts as the Corporation may in its discretion
determine, funds for the operation of the bridge bank in lieu
of capital.
(C) Authority to issue capital stock
Whenever the Board of Directors determines it is advisable to
do so, the Corporation shall cause capital stock of a bridge
bank to be issued and offered for sale in such amounts and on
such terms and conditions as the Corporation may, in its
discretion, determine.
(6) No Federal status
(A) Agency status
A bridge bank is not an agency, establishment, or
instrumentality of the United States.
(B) Employee status
Representatives for purposes of paragraph (1)(B), interim
directors, directors, officers, employees, or agents of a
bridge bank are not, solely by virtue of service in any such
capacity, officers or employees of the United States. Any
employee of the Corporation or of any Federal instrumentality
who serves at the request of the Corporation as a
representative for purposes of paragraph (1)(B), interim
director, director, officer, employee, or agent of a bridge
bank shall not -
(i) solely by virtue of service in any such capacity lose
any existing status as an officer or employee of the United
States for purposes of title 5 or any other provision of law,
or
(ii) receive any salary or benefits for service in any such
capacity with respect to a bridge bank in addition to such
salary or benefits as are obtained through employment with
the Corporation or such Federal instrumentality.
(7) Assistance authorized
The Corporation may, in its discretion, provide assistance
under section 1823(c) of this title to facilitate any transaction
described in clause (i), (ii), or (iii) of paragraph (10)(A) with
respect to any bridge bank in the same manner and to the same
extent as such assistance may be provided under such section with
respect to an insured bank in default, or to facilitate a bridge
bank's acquisition of any assets or the assumption of any
liabilities of an insured bank in default.
(8) Acquisition
(A) In general
The responsible agency shall notify the Attorney General of
any transaction involving the merger or sale of a bridge bank
requiring approval under section 1828(c) of this title and if a
report on competitive factors is requested within 10 days, such
transaction may not be consummated before the 5th calendar day
after the date of approval by the responsible agency with
respect thereto. If the responsible agency has found that it
must act immediately to prevent the probable failure of 1 of
the banks involved, the preceding sentence does not apply and
the transaction may be consummated immediately upon approval by
the agency.
(B) By out-of-State holding company
Any depository institution, including an out-of-State
depository institution, or any out-of-State depository
institution holding company may acquire and retain the capital
stock or assets of, or otherwise acquire and retain a bridge
bank if the bridge bank at any time had assets aggregating
$500,000,000 or more, as determined by the Corporation on the
basis of the bridge bank's reports of condition or on the basis
of the last available reports of condition of any insured bank
in default, which institution has been acquired, or whose
assets have been acquired, by the bridge bank. The acquiring
entity may acquire the bridge bank only in the same manner and
to the same extent as such entity may acquire an insured bank
in default under section 1823(f)(2) of this title.
(9) Duration of bridge bank
Subject to paragraphs (11) and (12), the status of a bridge
bank as such shall terminate at the end of the 2-year period
following the date it was granted a charter. The Board of
Directors may, in its discretion, extend the status of the bridge
bank as such for 3 additional 1-year periods.
(10) Termination of bridge bank status
The status of any bridge bank as such shall terminate upon the
earliest of -
(A) the merger or consolidation of the bridge bank with a
depository institution that is not a bridge bank;
(B) at the election of the Corporation, the sale of a
majority of the capital stock of the bridge bank to an entity
other than the Corporation and other than another bridge bank;
(C) the sale of 80 percent, or more, of the capital stock of
the bridge bank to an entity other than the Corporation and
other than another bridge bank;
(D) at the election of the Corporation, either the assumption
of all or substantially all of the deposits and other
liabilities of the bridge bank by a depository institution
holding company or a depository institution that is not a
bridge bank, or the acquisition of all or substantially all of
the assets of the bridge bank by a depository institution
holding company, a depository institution that is not a bridge
bank, or other entity as permitted under applicable law; and
(E) the expiration of the period provided in paragraph (9),
or the earlier dissolution of the bridge bank as provided in
paragraph (12).
(11) Effect of termination events
(A) Merger or consolidation
A bridge bank that participates in a merger or consolidation
as provided in paragraph (10)(A) shall be for all purposes a
national bank with all the rights, powers, and privileges
thereof, and such merger or consolidation shall be conducted in
accordance with, and shall have the effect provided in, the
provisions of applicable law.
(B) Charter conversion
Following the sale of a majority of the capital stock of the
bridge bank as provided in paragraph (10)(B), the Corporation
may amend the charter of the bridge bank to reflect the
termination of the status of the bridge bank as such, whereupon
the bank shall remain a national bank, with all of the rights,
powers, and privileges thereof, subject to all laws and
regulations applicable thereto.
(C) Sale of stock
Following the sale of 80 percent or more of the capital stock
of a bridge bank as provided in paragraph (10)(C), the bank
shall remain a national bank, with all of the rights, powers,
and privileges thereof, subject to all laws and regulations
applicable thereto.
(D) Assumption of liabilities and sale of assets
Following the assumption of all or substantially all of the
liabilities of the bridge bank, or the sale of all or
substantially all of the assets of the bridge bank, as provided
in paragraph (10)(D), at the election of the Corporation the
bridge bank may retain its status as such for the period
provided in paragraph (9).
(E) Effect on holding companies
A depository institution holding company acquiring a bridge
bank under section 1823(f) of this title, paragraph (8)(B) (or
any predecessor provision), or both provisions, shall not be
impaired or adversely affected by the termination of the status
of a bridge bank as a result of subparagraph (A), (B), (C), or
(D) of paragraph (10), and shall be entitled to the rights and
privileges provided in section 1823(f) of this title.
(F) Amendments to charter
Following the consummation of a transaction described in
subparagraph (A), (B), (C), or (D) of paragraph (10), the
charter of the resulting institution shall be amended to
reflect the termination of bridge bank status, if appropriate.
(12) Dissolution of bridge bank
(A) In general
Notwithstanding any other provision of State or Federal law,
if the bridge bank's status as such has not previously been
terminated by the occurrence of an event specified in
subparagraph (A), (B), (C), or (D) of paragraph (10) -
(i) the Board of Directors may, in its discretion, dissolve
a bridge bank in accordance with this paragraph at any time;
and
(ii) the Board of Directors shall promptly commence
dissolution proceedings in accordance with this paragraph
upon the expiration of the 2-year period following the date
the bridge bank was chartered, or any extension thereof, as
provided in paragraph (9).
(B) Procedures
The Comptroller of the Currency shall appoint the Corporation
receiver for a bridge bank upon certification by the Board of
Directors to the Comptroller of the Currency of its
determination to dissolve the bridge bank. The Corporation as
such receiver shall wind up the affairs of the bridge bank in
conformity with the provisions of law relating to the
liquidation of closed national banks. With respect to any such
bridge bank, the Corporation as such receiver shall have all
the rights, powers, and privileges and shall perform the duties
related to the exercise of such rights, powers, or privileges
granted by law to a receiver of any insured depository
institution and notwithstanding any other provision of law in
the exercise of such rights, powers, and privileges the
Corporation shall not be subject to the direction or
supervision of any State agency or other Federal agency.
(13) Multiple bridge banks
Subject to paragraph (1)(B)(i), the Corporation may, in the
Corporation's discretion, organize 2 or more bridge banks under
this subsection to assume any deposits of, assume any other
liabilities of, and purchase any assets of a single bank in
default.
(o) Supervisory records
In addition to the requirements of section 1817(a)(2) of this
title to provide to the Corporation copies of reports of
examination and reports of condition, whenever the Corporation has
been appointed as receiver for an insured depository institution,
the appropriate Federal banking agency shall make available all
supervisory records to the receiver which may be used by the
receiver in any manner the receiver determines to be appropriate.
(p) Certain sales of assets prohibited
(1) Persons who engaged in improper conduct with, or caused
losses to, depository institutions
The Corporation shall prescribe regulations which, at a
minimum, shall prohibit the sale of assets of a failed
institution by the Corporation to -
(A) any person who -
(i) has defaulted, or was a member of a partnership or an
officer or director of a corporation that has defaulted, on 1
or more obligations the aggregate amount of which exceed
$1,000,000, to such failed institution;
(ii) has been found to have engaged in fraudulent activity
in connection with any obligation referred to in clause (i);
and
(iii) proposes to purchase any such asset in whole or in
part through the use of the proceeds of a loan or advance of
credit from the Corporation or from any institution for which
the Corporation has been appointed as conservator or
receiver;
(B) any person who participated, as an officer or director of
such failed institution or of any affiliate of such
institution, in a material way in transactions that resulted in
a substantial loss to such failed institution;
(C) any person who has been removed from, or prohibited from
participating in the affairs of, such failed institution
pursuant to any final enforcement action by an appropriate
Federal banking agency; or
(D) any person who has demonstrated a pattern or practice of
defalcation regarding obligations to such failed institution.
(2) Convicted debtors
Except as provided in paragraph (3), any person who -
(A) has been convicted of an offense under section 215, 656,
657, 1005, 1006, 1007, 1008,(!10) 1014, 1032, 1341, 1343, or
1344 of title 18 or of conspiring to commit such an offense,
affecting any insured depository institution for which any
conservator or receiver has been appointed; and
(B) is in default on any loan or other extension of credit
from such insured depository institution which, if not paid,
will cause substantial loss to the institution, the Deposit
Insurance Fund, the Corporation, the FSLIC Resolution Fund, or
the Resolution Trust Corporation,
may not purchase any asset of such institution from the
conservator or receiver.
(3) Settlement of claims
Paragraphs (1) and (2) shall not apply to the sale or transfer
by the Corporation of any asset of any insured depository
institution to any person if the sale or transfer of the asset
resolves or settles, or is part of the resolution or settlement,
of -
(A) 1 or more claims that have been, or could have been,
asserted by the Corporation against the person; or
(B) obligations owed by the person to any insured depository
institution, the FSLIC Resolution Fund, the Resolution Trust
Corporation, or the Corporation.
(4) "Default" defined
For purposes of this subsection, the term "default" means a
failure to comply with the terms of a loan or other obligation to
such an extent that the property securing the obligation is
foreclosed upon.
(q) Expedited procedures for certain claims
(1) Time for filing notice of appeal
The notice of appeal of any order, whether interlocutory or
final, entered in any case brought by the Corporation against an
insured depository institution's director, officer, employee,
agent, attorney, accountant, or appraiser or any other person
employed by or providing services to an insured depository
institution shall be filed not later than 30 days after the date
of entry of the order. The hearing of the appeal shall be held
not later than 120 days after the date of the notice of appeal.
The appeal shall be decided not later than 180 days after the
date of the notice of appeal.
(2) Scheduling
Consistent with section 1657 of title 18,(!11) a court of the
United States shall expedite the consideration of any case
brought by the Corporation against an insured depository
institution's director, officer, employee, agent, attorney,
accountant, or appraiser or any other person employed by or
providing services to an insured depository institution. As far
as practicable the court shall give such case priority on its
docket.
(3) Judicial discretion
The court may modify the schedule and limitations stated in
paragraphs (1) and (2) in a particular case, based on a specific
finding that the ends of justice that would be served by making
such a modification would outweigh the best interest of the
public in having the case resolved expeditiously.
(r) Foreign investigations
The Corporation and the Resolution Trust Corporation, as
conservator or receiver of any insured depository institution and
for purposes of carrying out any power, authority, or duty with
respect to an insured depository institution -
(1) may request the assistance of any foreign banking authority
and provide assistance to any foreign banking authority in
accordance with section 1818(v) of this title; and
(2) may each maintain an office to coordinate foreign
investigations or investigations on behalf of foreign banking
authorities.
(s) Prohibition on entering secrecy agreements and protective
orders
The Corporation may not enter into any agreement or approve any
protective order which prohibits the Corporation from disclosing
the terms of any settlement of an administrative or other action
for damages or restitution brought by the Corporation in its
capacity as conservator or receiver for an insured depository
institution.
(t) Agencies may share information without waiving privilege
(1) In general
A covered agency, in any capacity, shall not be deemed to have
waived any privilege applicable to any information by
transferring that information to or permitting that information
to be used by -
(A) any other covered agency, in any capacity; or
(B) any other agency of the Federal Government (as defined in
section 6 of title 18).
(2) Definitions
For purposes of this subsection:
(A) Covered agency
The term "covered agency" means any of the following:
(i) Any Federal banking agency.
(ii) The Farm Credit Administration.
(iii) The Farm Credit System Insurance Corporation.
(iv) The National Credit Union Administration.
(v) The Government Accountability Office.
(B) Privilege
The term "privilege" includes any work-product, attorney-
client, or other privilege recognized under Federal or State
law.
(3) Rule of construction
Paragraph (1) shall not be construed as implying that any
person waives any privilege applicable to any information because
paragraph (1) does not apply to the transfer or use of that
information.
(u) Purchase rights of tenants
(1) Notice
Except as provided in paragraph (3), the Corporation may make
available for sale a 1- to 4-family residence (including a
manufactured home) to which the Corporation acquires title only
after the Corporation has provided the household residing in the
property notice (in writing and mailed to the property) of the
availability of such property and the preference afforded such
household under paragraph (2).
(2) Preference
In selling such a property, the Corporation shall give
preference to any bona fide offer made by the household residing
in the property, if -
(A) such offer is substantially similar in amount to other
offers made within such period (or expected by the Corporation
to be made within such period);
(B) such offer is made during the period beginning upon the
Corporation making such property available and of a reasonable
duration, as determined by the Corporation based on the normal
period for sale of such properties; and
(C) the household making the offer complies with any other
requirements applicable to purchasers of such property,
including any downpayment and credit requirements.
(3) Exceptions
Paragraphs (1) and (2) shall not apply to -
(A) any residence transferred in connection with the transfer
of substantially all of the assets of an insured depository
institution for which the Corporation has been appointed
conservator or receiver;
(B) any eligible single family property (as such term is
defined in section 1831q(p) of this title; or
(C) any residence for which the household occupying the
residence was the mortgagor under a mortgage on such residence
and to which the Corporation acquired title pursuant to default
on such mortgage.
(v) Preference for sales for homeless families
Subject to subsection (u) of this section, in selling any real
property (other than eligible residential property and eligible
condominium property, as such terms are defined in section 1831q(p)
of this title) to which the Corporation acquires title, the
Corporation shall give preference among offers to purchase the
property that will result in the same net present value proceeds,
to any offer that would provide for the property to be used, during
the remaining useful life of the property, to provide housing or
shelter for homeless persons (as such term is defined in section
11302 of title 42) or homeless families.
(w) Preferences for sales of certain commercial real properties
(1) Authority
In selling any eligible commercial real properties of the
Corporation, the Corporation shall give preference, among offers
to purchase the property that will result in the same net present
value proceeds, to any offer -
(A) that is made by a public agency or nonprofit
organization; and
(B) under which the purchaser agrees that the property shall
be used, during the remaining useful life of the property, for
offices and administrative purposes of the purchaser to carry
out a program to acquire residential properties to provide (i)
homeownership and rental housing opportunities for very-low-,
low-, and moderate-income families, or (ii) housing or shelter
for homeless persons (as such term is defined in section 11302
of title 42) or homeless families.
(2) Definitions
For purposes of this subsection, the following definitions
shall apply:
(A) Eligible commercial real property
The term "eligible commercial real property" means any
property (i) to which the Corporation acquires title, and (ii)
that the Corporation, in the discretion of the Corporation,
determines is suitable for use for the location of offices or
other administrative functions involved with carrying out a
program referred to in paragraph (1)(B).
(B) Nonprofit organization and public agency
The terms "nonprofit organization" and "public agency" have
the same meanings as in section 1831q(p) of this title.