PUBLIC LAW 109–8—APR. 20, 2005
119 STAT. 159
States or any other Federal or State law relating to the avoidance of preferential or fraudulent transfers,’’ before ‘‘the Board’’. SEC. 902. AUTHORITY OF THE FDIC AND NCUAB WITH RESPECT TO FAILED AND FAILING INSTITUTIONS.
(a) FEDERAL DEPOSIT INSURANCE CORPORATION.— (1) IN GENERAL.—Section 11(e)(8) of the Federal Deposit Insurance Act (12 U.S.C. 1821(e)(8)) is amended— (A) in subparagraph (E), by striking ‘‘other than paragraph (12) of this subsection, subsection (d)(9)’’ and inserting ‘‘other than subsections (d)(9) and (e)(10)’’; and (B) by adding at the end the following new subparagraphs: ‘‘(F) CLARIFICATION.—No provision of law shall be construed as limiting the right or power of the Corporation, or authorizing any court or agency to limit or delay, in any manner, the right or power of the Corporation to transfer any qualified financial contract in accordance with paragraphs (9) and (10) of this subsection or to disaffirm or repudiate any such contract in accordance with subsection (e)(1) of this section. ‘‘(G) WALKAWAY CLAUSES NOT EFFECTIVE.— ‘‘(i) IN GENERAL.—Notwithstanding the provisions of subparagraphs (A) and (E), and sections 403 and 404 of the Federal Deposit Insurance Corporation Improvement Act of 1991, no walkaway clause shall be enforceable in a qualified financial contract of an insured depository institution in default. ‘‘(ii) WALKAWAY CLAUSE DEFINED.—For purposes of this subparagraph, the term ‘walkaway clause’ means a provision in a qualified financial contract that, after calculation of a value of a party’s position or an amount due to or from 1 of the parties in accordance with its terms upon termination, liquidation, or acceleration of the qualified financial contract, either does not create a payment obligation of a party or extinguishes a payment obligation of a party in whole or in part solely because of such party’s status as a nondefaulting party.’’. (2) TECHNICAL AND CONFORMING AMENDMENT.—Section 11(e)(12)(A) of the Federal Deposit Insurance Act (12 U.S.C. 1821(e)(12)(A)) is amended by inserting ‘‘or the exercise of rights or powers by’’ after ‘‘the appointment of’’. (b) NATIONAL CREDIT UNION ADMINISTRATION BOARD.— (1) IN GENERAL.—Section 207(c)(8) of the Federal Credit Union Act (12 U.S.C. 1787(c)(8)) is amended— (A) in subparagraph (E) (as amended by section 901(h)), by striking ‘‘other than paragraph (12) of this subsection, subsection (b)(9)’’ and inserting ‘‘other than subsections (b)(9) and (c)(10)’’; and (B) by adding at the end the following new subparagraphs: ‘‘(F) CLARIFICATION.—No provision of law shall be construed as limiting the right or power of the Board, or authorizing any court or agency to limit or delay, in any manner, the right or power of the Board to transfer any qualified financial contract in accordance with paragraphs
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