12 2 STA T . 2 74 7 PUBLIC LA W 11 0– 2 89—J UL Y3 0 , 2008 creatingsu c h trust , cust od ia l , or other agenc y arrange -m ent .‘ ‘ ( iii )LIAB I L I TYOFC O NSERV ATOR OR RECEIVER. —T he lia b ility o f the conser v ator or receiver a p pointed under this section for damages shall, in the case of any contingent or unli q uidated claim relating to the mortgages held in trust, be estimated in accordance w ith the regulations of the D irector. ‘‘(c) P RIORITY OF EXP ENSES AN DU NSEC U RED C LAI M S.— ‘‘( 1 ) I N G ENERAL.—Unsecured claims against a regulated entity, or the receiver therefor, that are proven to the satisfac- tion of the receiver shall have priority in the following order
‘‘( A ) Administrative e x penses of the receiver. ‘‘( B ) Any other general or senior liability of the regu- lated entity (which is not a liability described under subparagraph (C) or (D). ‘‘(C) Any obligation subordinated to general creditors (which is not an obligation described under subparagraph (D)). ‘‘(D) Any obligation to shareholders or members arising as a result of their status as shareholder or members. ‘‘( 2 ) CREDITORS SIMILARLY SITUATED.—All creditors that are similarly situated under paragraph (1) shall be treated in a similar manner, except that the receiver may ta k e any action (including making payments) that does not comply with this subsection, if— ‘‘(A) the Director determines that such action is nec- essary to maximi z e the value of the assets of the regulated entity, to maximize the present value return from the sale or other disposition of the assets of the regulated entity, or to minimize the amount of any loss realized upon the sale or other disposition of the assets of the regulated entity
and ‘‘(B) all creditors that are similarly situated under paragraph (1) receive not less than the amount provided in subsection (e)(2). ‘‘( 3 ) DEFINITION.—As used in this subsection, the term ‘administrative expenses of the receiver ’ includes— ‘‘(A) the actual, necessary costs and expenses incurred by the receiver in preserving the assets of a failed regulated entity or liquidating or otherwise resolving the affairs of a failed regulated entity; and ‘‘(B) any obligations that the receiver determines are necessary and appropriate to facilitate the smooth and orderly liquidation or other resolution of the regulated entity. ‘‘(d) PROVISIONS R ELATING TO CONTRACTS ENTERED INTO BEFORE APPOINTMENT OF CONSERVATOR OR RECEIVER.— ‘‘(1) AUT H ORITY TO REPUDIATE CONTRACTS.—In addition to any other rights a conservator or receiver may have, the conser- vator or receiver for any regulated entity may disaffirm or repudiate any contract or lease— ‘‘(A) to which such regulated entity is a party; ‘‘(B) the performance of which the conservator or receiver, in its sole discretion, determines to be burden- some; and
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