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1000 - Federal Deposit Insurance Act
(e)Provisions Relating to Contracts Entered IntoBefore Appointment of Conservator or Receiver.--
(1)AUTHORITY TO REPUDIATECONTRACTS.--In addition to any other rights a conservator orreceiver may have, the conservator or receiver for any insureddepository institution may disaffirm or repudiate any contract orlease--
(A)to which such institution is a party;
(B)the performance of which theconservator or receiver, in the conservator's or receiver's discretion,determines to be burdensome; and
(C)the disaffirmance or repudiation ofwhich the conservator or receiver determines, in the conservator's orreceiver's discretion, will promote the orderly administration of theinstitution's affairs.
(2)TIMING OF REPUDIATION.--Theconservator or receiver appointed for any insured depositoryinstitution in accordance with subsection (c) shall determine whetheror not to exercise the rights of repudiation under this subsectionwithin a reasonable period following such appointment.
(3)CLAIMS FOR DAMAGES FORREPUDIATION.--
(A)IN GENERAL.--Except asotherwise provided in subparagraph (C) and paragraphs (4), (5), and(6), the liability of the conservator or receiver for the disaffirmanceor 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 inparagraph (8), the date of the disaffirmance or repudiation of suchcontract or agreement.
(B)NO LIABILITY FOR OTHERDAMAGES.--For purposes of subparagraph (A), the term "actualdirect 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 REPUDIATIONOF FINANCIAL CONTRACTS.--In the case of any qualified financialcontract or agreement to which paragraph (8) applies, compensatorydamages shall be--
(i)deemed to include normal and reasonable costs ofcover or other reasonable measures of damages utilized in theindustries for such contract and agreement claims; and
(ii)paid in accordance with this subsection andsubsection (i) except as otherwise specifically provided in thissection.
(4)LEASES UNDER WHICH THE INSTITUTIONIS THE LESSEE.--
(A)IN GENERAL.--If theconservator or receiver disaffirms or repudiates a lease under whichthe insured depository institution was the lessee, the conservator orreceiver shall not be liable for any damages (other than damagesdetermined pursuant to subparagraph (B)) for the disaffirmance orrepudiation of such lease.
(B)PAYMENTS OF RENT.--Notwithstandingsubparagraph (A), the lessor under a lease to which such subparagraphapplies shall--
(i)be entitled to the contractual rent accruing before the laterof 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 orother penalty provision in the lease; and
(iii)have a claim for any unpaid rent, subject to allappropriate offsets and defenses, due as of the date of the appointmentwhich shall be paid in accordance with this subsection and subsection(i).
(5)LEASES UNDER WHICH THE INSTITUTION IS THE LESSOR.--
(A)IN GENERAL.--If the conservator or receiverrepudiates an unexpired written lease of real property of the insureddepository institution under which the institution is the lessor andthe lessee is not, as of the date of such repudiation, in default, thelessee under such lease may either--
(i)treat the lease as terminated by such repudiation; or
(ii)remain in possession of the leasehold interest for thebalance of the term of the lease unless the lessee defaults under theterms of the lease after the date of such repudiation.
(B)PROVISIONS APPLICABLE TO LESSEE REMAINING INPOSSESSION.--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 theterms of the lease after the date of the repudiation of such lease;
(II)may offset against any rent payment which accrues after thedate of the repudiation of the lease, any damages which accrue aftersuch date due to the nonperformance of any obligation of the insureddepository institution under the lease after such date; and
(ii)the conservator or receiver shall not be liable to thelessee for any damages arising after such date as a result of therepudiation 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 receiverrepudiates any contract (which meets the requirements of each paragraphof section 13(e)) for the sale of real property and the purchaser ofsuch real property under such contract is in possession and is not, asof the date of such repudiation, in default, such purchaser mayeither--
(i)treat the contract as terminated by such repudiation; or
(ii)remain in possession of such real property.
(B)PROVISIONS APPLICABLE TO PURCHASER REMAINING INPOSSESSION.--If any purchaser of real property under any contractdescribed in subparagraph (A) remains in possession of such propertypursuant to clause (ii) of such subparagraph--
(i)the purchaser--
(I)shall continue to make all payments due under the contractafter the date of the repudiation of the contract; and
(II)may offset against any such payments any damages whichaccrue after such date due to the nonperformance (after such date) ofany 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 aftersuch date as a result of the repudiation other than the amount of anyoffset allowed under clause (i)(II);
(II)deliver title to the purchaser in accordance with theprovisions of the contract; and
(III)have no obligation under the contract other than theperformance required under subclause (II).
(C)ASSIGNMENT AND SALE ALLOWED.--
(i)IN GENERAL.--No provision of this paragraph shall beconstrued as limiting the right of the conservator or receiver toassign the contract described in subparagraph (A) and sell the propertysubject to the contract and the provisions of this paragraph.
(ii)NO LIABILITY AFTER ASSIGNMENT AND SALE.--If anassignment and sale described in clause (i) is consummated, theconservator or receiver shall have no furtherliability under the contract describedin subparagraph (A) or with respect to the real property which was thesubject of such contract.
(7)PROVISIONS APPLICABLE TO SERVICE CONTRACTS.--
(A)SERVICES PERFORMED BEFORE APPOINTMENT.--In the caseof any contract for services between any person and any insureddepository institution for which the Corporation has been appointedconservator or receiver, any claim of such person for servicesperformed before the appointment of the conservator or the receivershall be--
(i)a claim to be paid in accordance with subsections (d) and(i); and
(ii)deemed to have arisen as of the date the conservator orreceiver was appointed.
(B)SERVICES PERFORMED AFTER APPOINTMENT AND PRIORTO REPUDIATION.--If, in the case of any contract for servicesdescribed in subparagraph (A), the conservator or receiver acceptsperformance by the other person before the conservator or receivermakes any determination to exercise the right of repudiation of suchcontract under this section--
(i)the other party shall be paid under the terms of the contractfor the services performed; and
(ii)the amount of such payment shall be treated as anadministrative expense of the conservatorship or receivership.
(C)ACCEPTANCE OF PERFORMANCE NO BAR TO SUBSEQUENTREPUDIATION.--The acceptance by any conservator or receiver ofservices referred to in subparagraph (B) in connection with a contractdescribed in such subparagraph shall not affect the right of theconservator or receiver to repudiate such contract under this sectionat any time after such performance.
(8)CERTAIN QUALIFIED FINANCIAL CONTRACTS.--
(A)RIGHTS OF PARTIES TO CONTRACTS.--Subject toparagraphs (9) and (10) of this subsection and notwithstanding anyother provision of this Act (other than subsection (d)(9) of thissection and section 13(e)), any other Federal law, or the law of anyState, 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 withan insured depository institution which arises upon the appointment ofthe Corporation as receiver for such institution at any time after suchappointment;
(ii)any right under any security agreement or arrangement orother credit enhancement related to one or more qualified financialcontracts described in clause (i).
(iii)any right to offset or net out any termination value,payment amount, or other transfer obligation arising under or inconnection with 1 or more contracts and agreements described in clause(i), including any master agreement for such contracts or agreements.
(B)APPLICABILITY OF OTHERPROVISIONS.--Subsection (d)(12) shall apply in the case of anyjudicial action or proceeding brought against any receiver referred toin subparagraph (A), or the insured depository institution for whichsuch receiver was appointed, by any party to a contract or agreementdescribed in subparagraph (A)(i) with such institution.
(C)CERTAIN TRANSFERS NOT AVOIDABLE.--
(i)IN GENERAL.--Notwithstanding paragraph (11), section5242 of the Revised Statutes of the United States or any other Federalor State law relating to the avoidance of preferential or fraudulenttransfers, the Corporation, whether acting as such or as conservator orreceiver of an insured depository institution, may not avoid anytransfer of money or other property in connection with any qualifiedfinancial contract with an insured depository institution.
(ii)EXCEPTION FOR CERTAIN TRANSFERS.--Clause (i) shallnot apply to any transfer of money or other property in connection withany qualified financial contract with an insured depository institutionif the Corporation determines that the transferee had actual intent tohinder, delay, or defraud such institution, the creditors of suchinstitution, or any conservator or receiver appointed for suchinstitution.
(D)CERTAIN CONTRACTS AND AGREEMENTSDEFINED.--For purposes of this subsection, the followingdefinitions shall apply:
(i)QUALIFIED FINANCIAL CONTRACT.--The term"qualified financial contract" means any securities contract,commodity contract, forward contract, repurchase agreement, swapagreement, and any similar agreement that the Corporation determines byregulation, resolution, or order to be a qualified financial contractfor purposes of this paragraph.
(ii)SECURITIES CONTRACT.--The term "securitiescontract"--
(I)means a contract for the purchase, sale, or loan of asecurity, a certificate of deposit, a mortgage loan, any interest in amortgage loan, a group or index of securities, certificates of deposit,or mortgage loans or interests therein (including any interest thereinor based on the value thereof) or any option on any of the foregoing,including any option to purchase or sell any such security, certificateof deposit, mortgage loan, interest, group or index, or option, andincluding any repurchase or reverse repurchase transaction on any suchsecurity, certificate of deposit, mortgage loan, interest, group orindex, or option (whether or not such repurchase or reverse repurchasetransaction is a "repurchase agreement", as defined in clause(v));
(II)does not include any purchase, sale, or repurchaseobligation under a participation in a commercial mortgage loan unlessthe Corporation determines by regulation, resolution, or order toinclude any such agreement within the meaning of such term;
(III)means any option entered into on a national securitiesexchange relating to foreign currencies;
(IV)means the guarantee (including by novation) by or to anysecurities clearing agency of any settlement of cash, securities,certificates of deposit, mortgage loans or interests therein, group orindex of securities, certificates of deposit, or mortgage loans orinterests therein (including any interest therein or based on the valuethereof) or option on any of the foregoing, including any option topurchase or sell any such security, certificate of deposit, mortgageloan, interest, group or index, or option (whether or not suchsettlement is in connection with any agreement or transaction referredto in subclauses (I) through (XII) (other than subclause (II));
(V)means any margin loan;
(VI)means any extension of credit for the clearance orsettlement of securities transactions;
(VII)means any loan transaction coupled with a securities collartransaction, any prepaid securities forward transaction, or any totalreturn swap transaction coupled with a securities sale transaction;
(VIII)means any other agreement or transaction that is similarto any agreement or transaction referred to in this clause;
(IX)means any combination of the agreements or transactionsreferred to in this clause;
(X)means any option to enter into any agreement or transactionreferred to in this clause;
(XI)means a master agreement that provides for an agreement ortransaction referred to in subclause (I), (III), (IV), (V), (VI),(VII), (VIII), (IX), or (X) together with all supplements to any suchmaster agreement, without regard to whether the master agreementprovides for an agreement or transaction that is not a securitiescontract under this clause, except that the master agreement shall beconsidered to be a securities contract under this clause only withrespect to each agreement or transaction under the master agreementthat 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 creditenhancement related to any agreement or transaction referred to in thisclause, including any guarantee or reimbursem*nt obligation inconnection with any agreement or transaction referred to in thisclause.
(iii)COMMODITY CONTRACT.--The term "commoditycontract" means--
(I)with respect to a futures commission merchant, a contract forthe purchase or sale of a commodity for future delivery on, or subjectto the rules of, a contract market or board of trade;
(II)with respect to a foreign futures commission merchant, aforeign future;
(III)with respect to a leverage transaction merchant, a leveragetransaction;
(IV)with respect to a clearing organization, a contract for thepurchase or sale of a commodity for future delivery on, or subject tothe rules of, a contract market or board of trade that is cleared bysuch clearing organization, or commodity option traded on, or subjectto the rules of, a contract market or board of trade that is cleared bysuch clearing organization;
(V)with respect to a commodity options dealer, a commodityoption;
(VI)any other agreement or transaction that is similar to anyagreement or transaction referred to in this clause;
(VII)any combination of the agreements or transactions referredto in this clause;
(VIII)any option to enter into any agreement or transactionreferred to in this clause;
(IX)a master agreement that provides for an agreement ortransaction referred to in subclause (I), (II), (III), (IV), (V), (VI),(VII), or (VIII), together with all supplements to any such masteragreement, without regard to whether the master agreement provides foran agreement or transaction that is not a commodity contract under thisclause, except that the master agreement shall be considered to be acommodity contract under this clause only with respect to eachagreement or transaction under the master agreement that is referred toin subclause (I), (II), (III), (IV), (V), (VI), (VII), or (VIII); or
(X)any security agreement or arrangement or other creditenhancement related to any agreement or transaction referred to in thisclause, including any guarantee or reimbursem*nt obligation inconnection with any agreement or transaction referred to in thisclause.
(iv)FORWARD CONTRACT.--The term "forwardcontract" means--
(I)a contract (other than a commodity contract) for thepurchase, sale, or transfer of a commodity or any similar good,article, service, right, or interest which is presently or in thefuture becomes the subject of dealing in the forward contract trade, orproduct or byproduct thereof, with a maturity date more than 2 daysafter the date the contract is entered into, including, a repurchase orreverse repurchase transaction (whether or not such repurchase orreverse repurchase transaction is a "repurchase agreement", asdefined 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 insubclauses (I) and (III);
(III)any option to enter into any agreement or transactionreferred to in subclause (I) or (II);
(IV)a master agreement that provides for an agreement ortransaction referred to in subclauses (I), (II), or (III), togetherwith all supplements to any such master agreement, without regard towhether the master agreement provides for an agreement or transactionthat is not a forward contract under this clause, except that themaster agreement shall be considered to be a forward contract underthis clause only with respect to each agreement or transaction underthe master agreement that is referred to in subclause (I), (II), or(III); or
(V)any security agreement or arrangement or other creditenhancement related to any agreement or transaction referred to insubclause (I), (II), (III), or (IV), including any guarantee orreimbursem*nt obligation in connection with any agreement ortransaction referred to in any such subclause.
(v)REPURCHASE AGREEMENT.--The term "repurchaseagreement" (which definition also applies to a reverse repurchaseagreement)--
(I)means an agreement, including related terms, which providesfor the transfer of one or more certificates of deposit,mortgage-related securities (as such term is defined in the SecuritiesExchange Act of 1934), mortgage loans, interests in mortgage-relatedsecurities or mortgage loans, eligible bankers' acceptances, qualifiedforeign government securities or securities that are direct obligationsof, or that are fully guaranteed by, the United States or any agency ofthe United States against the transfer of funds by the transferee ofsuch certificates of deposit, eligible bankers' acceptances,securities, mortgage loans, or interests with a simultaneous agreementby such transferee to transfer tothe transferor thereof certificates ofdeposit, eligible bankers' acceptances, securities, mortgage loans, orinterests as described above, at a date certain not later than 1 yearafter such transfers or on demand, against the transfer of funds, orany other similar agreement;
(II)does not include any repurchase obligation under aparticipation in a commercial mortgage loan unless the Corporationdetermines by regulation, resolution, or order to include any suchparticipation within the meaning of such term;
(III)means any combination of agreements or transactionsreferred to in subclauses (I) and (IV);
(IV)means any option to enter into any agreement or transactionreferred to in subclause (I) or (III);
(V)means a master agreement that provides for an agreement ortransaction referred to in subclause (I), (III), or (IV), together withall supplements to any such master agreement, without regard to whetherthe master agreement provides for an agreement or transaction that isnot a repurchase agreement under this clause, except that the masteragreement shall be considered to be a repurchase agreement under thissubclause only with respect to each agreement or transaction under themaster agreement that is referred to in subclause (I), (III), or (IV);and
(VI)means any security agreement or arrangement or other creditenhancement related to any agreement or transaction referred to insubclause (I), (III), (IV), or (V), including any guarantee orreimbursem*nt obligation in connection with any agreement ortransaction referred to in any such subclause.
For purposes of this clause, the term "qualified foreigngovernment security" means a security that is a direct obligationof, or that is fully guaranteed by, the central government of a memberof the Organization for Economic Cooperation and Development (asdetermined by regulation or order adopted by the appropriate Federalbanking authority).
(vi)SWAP AGREEMENT.--The term "swap agreement"means--
(I)any agreement, including the terms and conditionsincorporated by reference in any such agreement, which is an interestrate swap, option, future, or forward agreement, including a ratefloor, rate cap, rate collar, cross-currency rate swap, and basis swap;a spot, same day-tomorrow, tomorrow-next, forward, or other foreignexchange 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 orcredit swap, option, future, or forward agreement; a commodity index orcommodity 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, orforward agreement;
(II)any agreement or transaction that is similar to any otheragreement or transaction referred to in this clause and that is of atype that has been, is presently, or in the future becomes, the subjectof recurrent dealings in the swap or other derivatives markets(including terms and conditions incorporated by reference in suchagreement) and that is a forward, swap, future, option or spottransaction on one or more rates, currencies, commodities, equitysecurities or other equity instruments, debt securities or other debtinstruments, quantitative measures associated with an occurrence,extent of an occurrence, or contingency associated with a financial,commercial, or economic consequence, or economic or financial indicesor measures of economic or financial risk or value;
(III)any combination of agreements or transactions referred toin this clause;
(IV)any option to enter into any agreement or transactionreferred to in this clause;
(V)a master agreement that provides for an agreement ortransaction referred to in subclause (I), (II), (III), or (IV),together with all supplements to any such master agreement, withoutregard to whether the master agreement contains an agreement ortransaction that is not a swap agreement under this clause, except thatthe master agreement shall be considered to be a swap agreement underthis clause only with respect to each agreement or transaction underthe master agreement that is referred to in subclause (I), (II), (III),or (IV); and
(VI)any security agreement or arrangement or other creditenhancement related to any agreements or transactions referred to insubclause (I), (II), (III), (IV), or (V),including any guarantee or reimbursem*ntobligation in connection with any agreement or transaction referred toin any such subclause. Such term is applicable for purposes of thissubsection only and shall not be construed or applied so as tochallenge or affect the characterization, definition, or treatment ofany swap agreement under any other statute, regulation, or rule,including the Gramm-Leach-Bliley Act, the Legal Certainty for BankProducts Act of 2000, the Securities Laws (as such term is defined insection 3(a)(47) of the Securities Exchange Act of 1934) and theCommodity Exchange Act.
(vii)TREATMENT OF MASTER AGREEMENT AS ONEAGREEMENT.--Any master agreement for any contract or agreementdescribed in any preceding clause of this subparagraph (or any masteragreement for such master agreement or agreements), together with allsupplements to such master agreement, shall be treated as a singleagreement and a single qualified financial contract. If a masteragreement contains provisions relating to agreements or transactionsthat are not themselves qualified financial contracts, the masteragreement shall be deemed to be a qualified financial contract onlywith respect to those transactions that are themselves qualifiedfinancial contracts.
(viii)TRANSFER.--The term "transfer" means everymode, direct or indirect, absolute or conditional, voluntary orinvoluntary, of disposing of or parting with property or with aninterest in property, including retention of title as a securityinterest and foreclosure of the depository institution's equity ofredemption.
(ix)PERSON.--The term "person" includes anygovernmental entity in addition to any entity included in thedefinition of such term in section 1 of title 1, United States Code.
(E)CERTAIN PROTECTIONS IN EVENT OF APPOINTMENT OFCONSERVATOR.--Notwithstanding any other provision of this Act(other than subsections (d)(9)) and (e)(10) of this section, andsection 13(e) of this Act),any other Federal law, or the law of any State, no person shall bestayed or prohibited from exercising--
(i)any right such person has to cause the termination,liquidation, or acceleration of any qualified financial contract with adepository institution in a conservatorship based upon a default undersuch financial contract which is enforceable under applicablenoninsolvency law;
(ii)any right under any security agreement or arrangement orother credit enhancement related to one or more qualified financialcontracts described in clause (i);
(iii)any right to offset or net out any termination values,payment amounts, or other transfer obligations arising under or inconnection with such qualified financial contracts.
(F)CLARIFICATION.--No provision of law shall beconstrued as limiting the right or power of the Corporation, orauthorizing any court or agency to limit or delay, in any manner, theright or power of the Corporation to transfer any qualified financialcontract in accordance with paragraphs (9) and (10) of this subsectionor to disaffirm or repudiate any such contract in accordance withsubsection (e)(1) of this section.
(G)WALKAWAY CLAUSES NOT EFFECTIVE.--
(i)IN GENERAL.--Notwithstanding the provisions ofsubparagraphs (A) and (E), and sections 403 and 404 of the FederalDeposit Insurance Corporation Improvement Act of 1991, no walkawayclause shall be enforceable in a qualified financial contract of aninsured depository institution in default.
(ii)LIMITED SUSPENSION OF CERTAIN OBLIGATIONS.--In thecase of a qualified financial contract referred to in clause (i), anypayment or delivery obligations otherwise due from a party pursuant tothe qualified financial contract shall be suspended from the time thereceiver is appointed until the earlier of--
(I)the time such party receives notice that such contract hasbeen transferred pursuant to subparagraph (A); or
(II)5:00 p.m. (eastern time) on the business day following thedate of the appointment of the receiver.
(iii)WALKAWAY CLAUSE DEFINED.--For purposes of thissubparagraph, the term walkaway clause' means any provision in aqualified financial contract that suspends, conditions, or extinguishesa payment obligation of a party, in whole or in part, or doesnotcreate a payment obligation of a party thatwould otherwise exist, solely because of such party's status as anondefaulting party in connection with the insolvency of an insureddepository institution that is a party to the contract or theappointment of or the exercise of rights or powers by a conservator orreceiver of such depository institution, and not as a result of aparty's exercise of any right to offset, setoff, or net obligationsthat exist under the contract, any other contract between thoseparties, or applicable law.
(H)RECORDKEEPING REQUIREMENTS.-- The Corporation, inconsultation with the appropriate Federal banking agencies, mayprescribe regulations requiring more detailed recordkeeping by anyinsured depository institution with respect to qualified financialcontracts (including market valuations) only if such insured depositoryinstitution is in a troubled condition (as such term is defined by theCorporation pursuant to section 1831 of this title).
(9)TRANSFER OF QUALIFIED FINANCIALCONTRACTS.--
(A)IN GENERAL.--In making any transfer of assets orliabilities of a depository institution in default which includes anyqualified financial contract, the conservator or receiver for suchdepository institution shall either--
(i)transfer to one financial institution, other than a financialinstitution for which a conservator, receiver, trustee in bankruptcy,or other legal custodian has been appointed or which is otherwise thesubject of a bankruptcy or insolvency proceeding--
(I)all qualified financial contracts between any person or anyaffiliate of such person and the depository institution in default;
(II)all claims of such person or any affiliate of such personagainst such depository institution under any such contract (other thanany claim which, under the terms of any such contract, is subordinatedto the claims of general unsecured creditors of such institution);
(III)all claims of such depository institution against suchperson or any affiliate of such person under any such contract; and
(IV)all property securing or any other credit enhancement forany contract described in subclause (I) or any claim described insubclause (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) (withrespect 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.--Intransferring any qualified financial contracts and related claims andproperty under subparagraph (A)(i), the conservator or receiver for thedepository institution shall not make such transfer to a foreign bank,financial institution organized under the laws of a foreign country, ora branch or agency of a foreign bank or financial institution unless,under the law applicable to such bank, financial institution, branch oragency, to the qualified financial contracts, and to any nettingcontract, any security agreement or arrangement or other creditenhancement related to one or more qualified financial contracts, thecontractual rights of the parties to such qualified financialcontracts, netting contracts, security agreements or arrangements, orother credit enhancements are enforceable substantially to the sameextent as permitted under this section.
(C)TRANSFER OF CONTRACTS SUBJECT TO THE RULES OF A CLEARINGORGANIZATION.--In the event that a conservator or receivertransfers any qualified financial contract and related claims,property, and credit enhancements pursuant to subparagraph (A)(i) andsuch contract is cleared by or subject to the rules of a clearingorganization, the clearing organization shall not be required to acceptthe transferee as a member by virtue of the transfer.
(D)DEFINITIONS.--For purposes of this paragraph, theterm "financial institution" means a broker or dealer, adepository institution, a futures commission merchant, or any otherinstitution, as determined by the Corporation by regulation to be afinancial institution, and the term "clearing organization" hasthe same meaning as in section 402 of the Federal Deposit InsuranceCorporation Improvement Act of 1991.
(10)NOTIFICATION OF TRANSFER.--
(A)IN GENERAL.--If--
(i)the conservator or receiver for an insured depositoryinstitution in default makes any transfer of the assets and liabilitiesof such institution; and
(ii)the transfer includes any qualified financial contract, theconservator or receiver shall notify any person who is a party to anysuch contract of such transfer by 5:00 p.m. (eastern time) on thebusiness day following the date of the appointment of the receiver inthe case of a receivership, or the business day following such transferin the case of a conservatorship.
(B)CERTAIN RIGHTS NOT ENFORCEABLE.--
(i)RECEIVERSHIP.--A person who is a party to aqualified financial contract with an insured depository institution maynot exercise any right that such person has toterminate, liquidate, or net such contractunder paragraph (8)(A) of this subsection or section 403 or 404 of theFederal Deposit Insurance Corporation Improvement Act of 1991, solelyby reason of or incidental to the appointment of a receiver for thedepository institution (or the insolvency or financial condition of thedepository institution for which the receiver has been appointed)--
(I)until 5:00 p.m. (eastern time) on the business day followingthe date of the appointment of the receiver; or
(II)after the person has received notice that the contract hasbeen transferred pursuant to paragraph (9)(A).
(ii)CONSERVATORSHIP.--A person who is a party to aqualified financial contract with an insured depository institution maynot exercise any right that such person has to terminate, liquidate, ornet such contract under paragraph (8)(E) of this subsection or section403 or 404 of the Federal Deposit Insurance Corporation Improvement Actof 1991, solely by reason of or incidental to the appointment of aconservator for the depository institution (or the insolvency orfinancial condition of the depository institution for which theconservator has been appointed).
(iii)NOTICE.--For purposes of this paragraph, theCorporation as receiver or conservator of an insured depositoryinstitution shall be deemed to have notified a person who is a party toa qualified financial contract with such depository institution if theCorporation has taken steps reasonably calculated to provide notice tosuch person by the time specified in subparagraph (A).
(C)TREATMENT OF BRIDGE DEPOSITORY INSTITUTIONS.--Thefollowing institutions shall not be considered to be a financialinstitution for which a conservator, receiver, trustee in bankruptcy,or other legal custodian has been appointed or which is otherwise thesubject of a bankruptcy or insolvency proceeding for purposes ofparagraph (9):
(i)A bridge depository institution.
(ii)A depository institution organized by the Corporation, forwhich a conservator is appointed either--
(I)immediately upon the organization of the institution; or
(II)at the time of a purchase and assumption transaction betweenthe depository institution and the Corporation as receiver for adepository institution in default.
(D)"BUSINESS DAY" DEFINED.--For purposes of thisparagraph, the term "business day" means any day other than anySaturday, Sunday, or any day on which either the New York StockExchange or the Federal Reserve Bank of New York is closed.
(11)DISAFFIRMANCE OR REPUDIATION OF QUALIFIED FINANCIALCONTRACTS.--In exercising the rights of disaffirmance orrepudiation of a conservator or receiver with respect to any qualifiedfinancial contract to which an insured depository institution is aparty, the conservator or receiver for such institution shall either--
(A)disaffirm or repudiate all qualified financial contractsbetween--
(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 financialcontracts referred to in subparagraph (A) (with respect to such personor any affiliate of such person).
(12)CERTAIN SECURITY INTERESTS NOT AVOIDABLE.--Noprovision of this subsection shall be construed as permitting theavoidance of any legally enforceable or perfected security interest inany of the assets of any depository institution except where such aninterest is taken in contemplation of the institution's insolvency orwith the intent to hinder, delay, or defraud the institution or thecreditors of such institution.
(13)AUTHORITY TO ENFORCE CONTRACTS.--
(A)IN GENERAL.--The conservator or receiver may enforceany contract, other than a director's or officer's liability insurancecontract or a depository institution bond, entered into by thedepository institution notwithstanding any provision of the contractproviding for termination, default, acceleration, or exercise of rightsupon, or solely by reason of, insolvency or the appointment of or theexercise of rights or powers by a conservator or receiver.
(B)CERTAIN RIGHTS NOT AFFECTED.--No provision of thisparagraph may be construed as impairing or affecting any right of theconservator or receiver to enforce or recover under a director's orofficer's liability insurance contract or depository institution bondunder other applicable law.
(C)CONSENT REQUIREMENT.--
(i)IN GENERAL.--Except as otherwise provided by thissection or section 15, no person may exercise any right or power toterminate, accelerate, or declare a default under any contract to whichthe depository institution is a party, or to obtain possession of orexercise control over any property of the institution or affect anycontractual rights of the institution, without the consent of theconservator or receiver, as appropriate, during the 45-day periodbeginning on the date of the appointment of the conservator, or duringthe 90-day period beginning on the date of the appointment of thereceiver, as applicable.
(ii)CERTAIN EXCEPTIONS.--No provision of thissubparagraph shall apply to a director or officer liability insurancecontract or a depository institution bond, to the rights of parties tocertain qualified financial contracts pursuant to paragraph (8), or tothe rights of parties to netting contracts pursuant to subtitle A oftitle IV of the Federal Deposit Insurance Corporation Improvement Actof 1991 (12 U.S.C. 4401 et seq.), or shall be construed as permittingthe conservator or receiver to fail to comply with otherwiseenforceable provisions of such contract.
(iii)RULE OF CONSTRUCTION.--Nothing in thissubparagraph shall be construed to limit or otherwise affect theapplicability of title 11, United States Code.
(14)EXCEPTION FOR FEDERAL RESERVE AND FEDERAL HOME LOANBANKS.--No provision of this subsection shall apply with respectto--
(A)any extension of credit from any Federal home loan bank orFederal Reserve bank to any insured depository institution; or
(B)any security interest in the assets of the institutionsecuring any such extension of credit.
(15)SELLING CREDIT CARD ACCOUNTS RECEIVABLE.--
(A)NOTIFICATION REQUIRED.--An undercapitalized insureddepository institution (as defined in section 38) shall notify theCorporation in writing before entering into an agreement to sell creditcard accounts receivable.
(B)WAIVER BY CORPORATION.--The Corporation may at anytime, in its sole discretion and upon such terms as it may prescribe,waive its right to repudiate an agreement to sell credit card accountsreceivable if the Corporation--
(i)determines that the waiver is in the best interests of thedeposit 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), theCorporation has waived its right to repudiate an agreement to sellcredit card accounts receivable--
(I)any provision of the agreement that restricts solicitation ofa credit card customer of the selling institution, or the use of acredit card customer list of the institution, shall bind any receiveror conservator of the institution; and
(II)the Corporation shall require any acquirer of the sellinginstitution, or of substantially all of the selling institution'sassets or liabilities, to agree to be bound by a provision described insubclause (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 orservice to any person identified without using a list of the sellinginstitution's customers in violation of the agreement;
(II)require the acquirer to restrict any preexistingrelationship between the acquirer and a customer; or
(III)apply to any transaction in which the acquirer acquiresonly insured deposits.
(D)WAIVER NOT ACTIONABLE.--The Corporation shall not,in any capacity, be liable to any person for damages resulting from thewaiver of or failure to waive the Corporation's right under this section torepudiate any contract or lease, including an agreement to sell creditcard accounts receivable. No court shall issue any order affecting anysuch waiver or failure to waive.
(E)OTHER AUTHORITY NOT AFFECTED.--This paragraph doesnot limit any other authority of the Corporation to waive theCorporation's right to repudiate an agreement or lease under thissection.
(16)CERTAIN CREDIT CARD CUSTOMER LISTS PROTECTED.
(A)IN GENERAL.--If any insured depository institutionsells credit card accounts receivable under an agreement negotiated atarm's length that provides for the sale of the institution's creditcard customer list, the Corporation shall prohibit any party to atransaction with respect to the institution under this section orsection 13 from using the list, except as permitted under theagreement.
(B)FRAUDULENT TRANSACTIONS EXCLUDED.--Subparagraph (A)does not limit the Corporation's authority to repudiate any agreemententered into with the intent to hinder, delay, or defraud theinstitution, the institution's creditors, or the Corporation.
(17)SAVINGS CLAUSE.--The meanings of terms used in thissubsection are applicable for purposes of this subsection only, andshall not be construed or applied so as to challenge or affect thecharacterization, definition, or treatment of any similar terms underany other statute, regulation, or rule, including theGramm--Leach--Bliley Act, the Legal Certainty for Bank Products Act of2000, the securities laws (as that term is defined in section 3(a)(47)of the Securities Exchange Act of 1934), and the Commodity ExchangeAct.
[Codified to 12 U.S.C. 1821(e)]
[Source:Section 2[11(e)] of the Act of September 21, 1950 (Pub.L. No. 797; 64 Stat. 885), effective September 21, 1950, as amended bysections 6(c)(18) and (19) of the Act of September 17, 1978 (Pub. L.No. 95--369; 92 Stat. 619), effective September 17, 1978; section212(a) of title II of the Act of August 9, 1989 (Pub. L. No. 101--73;103 Stat. 222), effective August 9, 1989; section 161(a) of title I ofthe Act of December 19, 1991 (Pub. L. No. 102--242; 105 Stat. 2285),effective December 19, 1991; section 325 of Title III and section602(a)(26) and (27) of title VI of the Act of September 23, 1994 (Pub.L. No. 103--325; 108 Stat. 2228 and 2289, respectively), effectiveSeptember 23, 1994; section 501(c)(2) of title V of the Act of October22, 1994 (Pub. L. No. 103--394; 108 Stat. 4143, effective October 22,1994; section 2706 of title II of the Act of September 30, 1996 (Pub.L. No. 104--208; 110 Stat. 3009--496), effective September 30, 1996;sections 901(a)(1), (b)(1), (c)(1), (d)(1), (e)(1), (f)(1), (g)(1),(h)(1), 901(i)(1), 902(a)(1), 903(a), 904(a), 905(a), and 908(a) oftitle IX of the Act of April 20, 2005 (Pub. L. No. 109--8; 119 Stat.147, 149, 151, 152, 155, 157--162, 165, 166, and 183, respectively),effective April 20, 2005; section 718(a) of title VII of the Act ofOctober 13, 2006 (Pub. L. No. 109--351; 120 Stat. 1997), effectiveOctober 13, 2006; sections 2(a)(1), 2(b)(1), 2(c)(1), 3(a) and 6(a) ofthe Act of December 12, 2006 (Pub. L. No. 109--390; 120 Stat.2692--2694, and 2698, respectively), effective December 12, 2006;section 1604(a)(2) and (3) of title VII of the Act of July 30, 2008(Pub. L. No. 110--289; 122 Stat. 2826 and 2827), effective July 30,2008]
(f)Payment of Insured Deposits.--
(1)IN GENERAL.--In case of the liquidation of, or otherclosing or winding up of the affairs of, any insured depositoryinstitution, payment of the insured deposits in such institution shallbe made by the Corporation as soon as possible, subject to theprovisions of subsection (g), either by cash or by making available toeach depositor a transferred deposit in a new insured depositoryinstitution in the same community or in another insured depositoryinstitution in an amount equal to the insured deposit of suchdepositor.
(2)PROOF OF CLAIMS.--The Corporation, in itsdiscretion, may require proof of claims to be filed and may approve orreject such claims for insured deposits.
(3)RESOLUTION OF DISPUTES.--A determination by theCorporation regarding any claim for insurance coverage shall be treatedas a final determination for purposes of this section. In itsdiscretion, the Corporation may promulgate regulations prescribingprocedures for resolving any disputed claim relating to any insureddeposit or any determination of insurance coverage with respect to anydeposit.
(4)REVIEW OF CORPORATION DETERMINATION.--A finaldetermination made by the Corporation regarding any claim for insurancecoverage shall be a final agency action reviewable in accordance withchapter 7 of title 5, United States Code, by the United States districtcourt for the Federal judicial district where the principal place ofbusiness of the depository institution is located.
(5)STATUTE OF LIMITATIONS.--Any request for review of afinal determination by the Corporation regarding any claim forinsurance coverage shall be filed with the appropriate United Statesdistrict court not later than 60 days after the date on which suchdetermination is issued.".
[Codified to 12 U.S.C. 1821(f)]
[Source:Section 2[11(f)] of the Act of September 21, 1950 (Pub.L. No. 797; 64 Stat. 885), effective September 21, 1950, as amended bysection 6(c)(20) of the Act of September 17, 1978 (Pub. L. No. 95--369;92 Stat. 619), effective September 17, 1978; sections 201(a)(1) and212(a) of title II of the Act of August 9, 1989 (Pub. L. No. 101--73;103 Stat. 187 and 222), effective August 9, 1989; section 602(a)(28) oftitle VI of the Act of September 23, 1994 (Pub. L. No. 103--325; 108Stat. 2289), effective September 23, 1994; Section 8(a)(12) of the Actof February 15, 2006 (Pub. L. No. 109--173; 119 Stat. 3612), effectivedate shall take effect on the day of the merger of the Bank InsuranceFund and the Savings Association Insurance Fund pursuant to the FederalDeposit Insurance Reform Act of 2005; section 721(a) of title VII ofthe Act of October 13, 2006 (Pub. L. No. 109--351; 120 Stat. 1998),effective October 13, 2006]
(g)Subrogation of Corporation.--
(1)IN GENERAL.--Notwithstanding any other provision ofFederal law, the law of any State, or the constitution of any State,the Corporation, upon the payment to any depositor as provided insubsection (f) of this section in connection with any insureddepository institution or insured branch described in such subsectionor the assumption of any deposit in such institution or branch byanother insured depository institution pursuant to this section orsection 13, shall be subrogated to all rights of the depositor againstsuch institution or branch to the extent of such payment or assumption.
(2)DIVIDENDS ON SUBROGRATED AMOUNTS.--The subrogationof the Corporation under paragraph (1) with respect to any insureddepository institution shall include the right on the part of theCorporation to receive the same dividends from the proceeds of theassets of such institution and recoveries on account of stockholders'liability as would have been payable to the depositor on a claim forthe insured deposit, but such depositor shall retain such claim for anyuninsured or unassumed portion of the deposit.
(3)WAIVER OF CERTAIN CLAIMS.--With respect to any bankwhich closes after May 25, 1938, the Corporation shall waive, in favoronly of any person against whom stockholders' individual liability maybe asserted, any claim on account of such liability in excess of theliability, if any, to the bank or its creditors, for the amount unpaidupon such stock in such bank; but any such waiver shall be effected insuch manner and on such terms and conditions as will not increaserecoveries or dividends on account of claims to which the Corporationis not subrogated.
(4)APPLICABILITY OF STATE LAW.--Subject to subsection(d)(11) of this section, if the Corporation is appointed pursuant tosubsection (c)(3), or determines not to invoke the authority conferredin subsection (c)(4), the rights of depositors and other creditors ofany State depository institution shall be determined in accordance withthe applicable provisions of State law.
[Codified to 12 U.S.C. 1821(g)]
[Source:Section 2[11(g)] of the Act of September 21, 1950 (Pub.L. No. 797; 64 Stat. 885), effective September 21, 1950, as amended bysections 6(c)(21) and (22) of the Act of September 17, 1978 (Pub. L.No. 95--369; 92 Stat. 619), effective September 17, 1978; section113(k) of title I of the Act of October 15, 1982 (Pub. L. No. 97--320;96 Stat. 1474), effective October 15, 1982; sections 201(a)(1) and212(a) of title II of the Act of August 9, 1989 (Pub. L. No. 101--73;103 Stat. 187 and 222), effective August 9, 1989]
(h)Conditions Applicable To Resolution Proceedings.--
(1)CONSIDERATION OF LOCAL ECONOMIC IMPACTREQUIRED.--The Corporation shall fully consider the adverseeconomic impact on local communities, including businesses and farms,of actions to be taken by it during the administration and liquidationof loans of a depository institution in default.
(2)ACTIONS TO ALLEVIATE ADVERSE ECONOMIC IMPACT TO BECONSIDERED.--The actions which the Corporation shall considerinclude the release of proceeds from the sale of products and servicesfor family living and business expenses and shortening the undue lengthof the decisionmaking process for the acceptance of offers ofsettlement contingent upon third party financing.
(3)GUIDELINES REQUIRED.--The Corporation shall adoptand publish procedures and guidelines to minimize adverse economiceffects caused by its actions on individual debtors in the community.
(4)FINANCIAL SERVICES INDUSTRY IMPACT ANALYSIS.--Afterthe appointment of the Corporation as conservator or receiver for anyinsured depository institution and beforetaking any action under this section orsection 13 in connection with the resolution of such institution, theCorporation shall--
(A)evaluate the likely impact of the means of resolution, andany action which the Corporation may take in connection with suchresolution, on the viability of other insured depository institutionsin the same community; and
(B)take such evaluation into account in determining the meansfor resolving the institution and establishing the terms and conditionsfor any such action.
[Codified to 12 U.S.C. 1821(h)]
[Source:Section 2[11(h)] of the Act of September 21, 1950 (Pub.L. No. 797; 64 Stat. 886--887), effective September 21, 1950, asamended by section 301(d) of title III of the Act of October 16, 1966(Pub. L. No. 89--695; 80 Stat. 1055), effective October 16, 1966;section 7(a)(4) of title I of the Act of December 23, 1969 (Pub. L. No.91--151; 83 Stat. 375), effective December 23, 1969; section 102(a)(4)of title I of the Act of October 28, 1974 (Pub. L. No. 93--495; 88Stat. 1502), effective November 27, 1974; section 308 of title III ofthe Act of March 31, 1980 (Pub. L. No. 96--221; 94 Stat. 147),effective March 31, 1980; section 503(a)(1) and (2) of title V of theAct of August 10, 1987 (Pub. L. No. 100--86; 101 Stat. 629), effectiveAugust 10, 1987 (Pub. L. No. 100--86 redesignated paragraphs (i), (j),(k) and (l) as (2), (3), (4) and (5), respectively); section 212(a) oftitle II of the Act of August 9, 1989 (Pub. L. No. 101--73; 103 Stat.222), effective August 9, 1989; section 141(d) of title I of the Act ofDecember 19, 1991 (Pub. L. No. 102--242; 105 Stat. 2277), effectiveDecember 19, 1991]
(i)Valuation of Claims in Default.--
(1)IN GENERAL.--Notwithstanding any other provision ofFederal law or the law of any State and regardless of the method whichthe Corporation determines to utilize with respect to an insureddepository institution in default or in danger of default, includingtransactions authorized under subsection (n) and section 13(c), thissubsection shall govern the rights of the creditors (other than insureddepositors) of such institution.
(2)MAXIMUM LIABILITY.--The maximum liability of theCorporation, acting as receiver or in any other capacity, to any personhaving a claim against the receiver or the insured depositoryinstitution for which such receiver is appointed shall equal the amountsuch claimant would have received if the Corporation had liquidated theassets and liabilities of such institution without exercising theCorporation's authority under subsection (n) of this section or section13.
(3)ADDITIONAL PAYMENTS AUTHORIZED.--
(A)IN GENERAL.--The Corporation may, in its discretionand in the interests of minimizing its losses, use its own resources tomake additional payments or credit additional amounts to or withrespect to or for the account of any claimant or category of claimants.Notwithstanding any other provision of Federal or State law, or theconstitution of any State, the Corporation shall not be obligated, as aresult of having made any such payment or credited any such amount toor with respect to or for the account of any claimant or category ofclaimants, to make payments to any other claimant or category ofclaimants.
(B)MANNER OF PAYMENT.--The Corporation may make thepayments or credit the amounts specified in subparagraph (A) directlyto the claimants or may make such payments or credit such amounts to anopen insured depository institution to induce such institution toaccept liability for such claims.
[Codified to 12 U.S.C. 1821(i)]
[Source:Section 2[11(i)] of the Act of September 21, 1950(Pub. L. No. 797; 64 Stat. 886), effective September 21, 1950, as addedby section 503(a)(3) of title V of the Act of August 10, 1987 (Pub. L.No. 100--86; 101 Stat. 629--632), effective August 10, 1987, and asamended by section 212(a) of title II of the Act of August 9, 1989(Pub. L. No. 101--73; 103 Stat. 222), effective August 9, 1989; section161(e) of title I of the Act of December 19, 1991 (Pub. L. No.102--242; 105 Stat. 2286), effective December 19, 1991; section602(a)(29) of title VI of the Act of September 23, 1994 (Pub. L. No.103--325; 108 Stat. 2289), effective September 23, 1994; Section8(a)(13) of the Act of February 15, 2006 (Pub. L. No. 109--173; 119Stat.3612), effective date shall take effect on theday of the merger of the Bank Insurance Fund and the SavingsAssociation Insurance Fund pursuant to the Federal Deposit InsuranceReform Act of 2005]
(j)Limitation on court action.Except as provided inthis section, no court may take any action, except at the request ofthe Board of Directors by regulation or order, to restrain or affectthe exercise of powers or functions of the Corporation as a conservatoror a receiver.
[Codified to 12 U.S.C. 1821(j)]
[Source:Section 2[11(j)] of the Act of September 21, 1950 (Pub.L. No. 797; 64 Stat. 886), effective September 21, 1950, as added bysection 507 of title V of the Act of August 10, 1987 (Pub. L. No.100--86; 101 Stat. 634), effective August 10, 1987, and as amended bysection 212(a) of title II of the Act of August 9, 1989 (Pub. L. No.101--73; 103 Stat. 222), effective August 9,1989]
(k)Liability of directors and officers.--A director orofficer of an insured depository institution may be held personallyliable for monetary damages in any civil action by, on behalf of, or atthe request or direction of the Corporation, which action is prosecutedwholly 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 purchasedfrom, assigned by, or otherwise conveyed by such receiver orconservator, or
(3)acting based upon a suit, claim, or cause of action purchasedfrom, assigned by, or otherwise conveyed in whole or in part by aninsured depository institution or its affiliate in connection withassistance provided under section13,
for gross negligence, including any similar conduct or conduct thatdemonstrates a greater disregard of a duty of care (than grossnegligence) including intentional tortious conduct, as such terms aredefined and determined under applicable State law. Nothing in thisparagraph shall impair or affect any right of the Corporation underother applicable law.
[Codified to 12 U.S.C. 1821(k)]
[Source:Section 2[11(k)] of the Act of September 21, 1950 (Pub.L. No. 797), effective September 21, 1950, as added by section 212(a)of title II of the Act of August 9, 1989 (Pub. L. No. 101--73; 103Stat. 222), effective August 9, 1989]
(l)Damages.--In any proceedingrelated to any claim against an insured depository institution'sdirector, officer, employee, agent, attorney, accountant, appraiser, orany other party employed by or providing services to an insureddepository institution, recoverable damages determined to result fromthe improvident or otherwise improper use or investment of any insureddepository institution's assets shall include principal losses andappropriate interest.
[Codified to 12 U.S.C. 1821(l)]
[Source:Section 2[11(l)] of the Act of September 21, 1950 (Pub.L. No. 797), effective September 21, 1950, as added by section 212(a)of title II of the Act of August 9, 1989 (Pub. L. No. 101--73; 103Stat. 222), effective August 9,1989]
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