Bankruptcy Code Section 555 - 562
§ 555. Contractual Right to Liquidate, Terminate, or Accelerate a Securities Contract
The exercise of a contractual right of a stockbroker, financial institution, financial participant, or securities clearing agency to cause the liquidation, termination, or acceleration of a securities contract, as defined in section 741 of this title [11 USCS § 741], because of a condition of the kind specified in section 365(e)(1) of this title [11 USCS § 365(e)(1)] shall not be stayed, avoided, or otherwise limited by operation of any provision of this title or by order of a court or administrative agency in any proceeding under this title unless such order is authorized under the provisions of the Securities Investor Protection Act of 1970 [15 USCS §§ 78aaa et seq.] or any statute administered by the Securities and Exchange Commission. As used in this section, the term "contractual right" includes a right set forth in a rule or bylaw of a derivatives clearing organization (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]), a multilateral clearing organization (as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991), a national securities exchange, a national securities association, a securities clearing agency, a contract market designated under the Com-modity Exchange Act [7 USCS §§ 1 et seq.], a derivatives transaction execution facility registered under the Commodity Exchange Act [7 USCS §§ 1 et seq.], or a board of trade (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]), or in a resolution of the governing board thereof, and a right, whether or not in writing, arising under common law, under law merchant, or by reason of normal business practice.
§ 556. Contractual right to liquidate, terminate, or accelerate a commodities contract or forward contract
The contractual right of a commodity broker, financial participant, or forward contract merchant to cause the liquidation, termination, or acceleration of a commodity contract, as defined in section 761 of this title [11 USCS § 761], or forward contract because of a condition of the kind specified in section 365(e)(1) of this title [11 USCS § 365(e)(1)], and the right to a variation or maintenance margin payment received from a trustee with respect to open commodity contracts or forward contracts, shall not be stayed, avoided, or otherwise limited by operation of any provision of this title or by the order of a court in any proceeding under this title. As used in this section, the term "contractual right" includes a right set forth in a rule or bylaw of a derivatives clearing organization (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]), a multilateral clearing organization (as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991), a national securities exchange, a national securities association, a securities clearing agency, a contract market designated under the Commodity Exchange Act [7 USCS §§ 1 et seq.], a derivatives transaction execution facility registered under the Commodity Exchange Act [7 USCS §§ 1 et seq.], or a board of trade (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]) or in a resolution of the governing board thereof and a right, whether or not evidenced in writing, arising under common law, under law merchant or by reason of normal business practice.
§ 557. Expedited determination of interests in, and abandonment or other disposition of grain assets
(a) This section applies only in a case concerning a debtor that owns or operates a grain storage facility and only with respect to grain and the proceeds of grain. This section does not affect the application of any other section of this title [11 USCS §§ 101 et seq.] to property other than grain and proceeds of grain.
(b) In this section--
(1) "grain" means wheat, corn, flaxseed, grain sorghum, barley, oats, rye, soybeans, other dry edible beans, or rice;
(2) "grain storage facility" means a site or physical structure regularly used to store grain for producers, or to store grain acquired from producers for resale; and
(3) "producer" means an entity which engages in the growing of grain.
(c) (1) Notwithstanding sections 362, 363, 365, and 554 of this title [11 USCS § 362, 363, 365, or 554], on the court's own motion the court may, and on the request of the trustee or an entity that claims an interest in grain or the proceeds of grain the court shall, expedite the procedures for the determination of interests in and the disposition of grain and the proceeds of grain, by shortening to the greatest extent feasible such time periods as are otherwise applicable for such procedures and by establishing, by order, a timetable having a duration of not to exceed 120 days for the completion of the applicable procedure specified in subsection (d) of this section. Such time periods and such timetable may be modified by the court, for cause, in accordance with subsection (f) of this section.
(2) The court shall determine the extent to which such time periods shall be shortened, based upon--
(A) any need of an entity claiming an interest in such grain or the proceeds of grain for a prompt determination of such interest;
(B) any need of such entity for a prompt disposition of such grain;
(C) the market for such grain;
(D) the conditions under which such grain is stored;
(E) the costs of continued storage or disposition of such grain;
(F) the orderly administration of the estate;
(G) the appropriate opportunity for an entity to assert an interest in such grain; and
(H) such other considerations as are relevant to the need to expedite such procedures in the case.
(d) The procedures that may be expedited under subsection (c) of this section include--
(1) the filing of and response to--
(A) a claim of ownership;
(B) a proof of claim;
(C) a request for abandonment;
(D) a request for relief from the stay of action against property under section 362(a) of this title [11 USCS § 362(a)];
(E) a request for determination of secured status;
(F) a request for determination of whether such grain or the proceeds of grain--
(i) is property of the estate;
(ii) must be turned over to the estate; or
(iii) may be used, sold, or leased; and
(G) any other request for determination of an interest in such grain or the proceeds of grain;
(2) the disposition of such grain or the proceeds of grain, before or after determination of interests in such grain or the proceeds of grain, by way of--
(A) sale of such grain;
(B) abandonment;
(C) distribution; or
(D) such other method as is equitable in the case;
(3) subject to sections 701, 702, 703, 1104, 1202, and 1302 of this title [11 USCS §§ 701, 702, 703, 1104, 1202, and 1302], the appointment of a trustee or examiner and the retention and compensation of any professional person required to assist with respect to matters relevant to the determination of interests in or disposition of such grain or the proceeds of grain; and
(4) the determination of any dispute concerning a matter specified in paragraph (1), (2), or (3) of this subsection.
(e) (1) Any governmental unit that has regulatory jurisdiction over the operation or liquidation of the debtor or the debtor's business shall be given notice of any request made or order entered under subsection (c) of this section.
(2) Any such governmental unit may raise, and may appear and be heard on, any issue relating to grain or the proceeds of grain in a case in which a request is made, or an order is entered, under subsection (c) of this section.
(3) The trustee shall consult with such governmental unit before taking any action relating to the disposition of grain in the possession, custody, or control of the debtor or the estate.
(f) The court may extend the period for final disposition of grain or the proceeds of grain under this section beyond 120 days if the court finds that--
(1) the interests of justice so require in light of the complexity of the case; and
(2) the interests of those claimants entitled to distribution of grain or the proceeds of grain will not be materially injured by such additional delay.
(g) Unless an order establishing an expedited procedure under subsection (c) of this section, or determining any interest in or approving any disposition of grain or the proceeds of grain, is stayed pending appeal--
(1) the reversal or modification of such order on appeal does not affect the validity of any procedure, determination, or disposition that occurs before such reversal or modification, whether or not any entity knew of the pendency of the appeal; and
(2) neither the court nor the trustee may delay, due to the appeal of such order, any proceeding in the case in which such order is issued.
(h) (1) The trustee may recover from grain and the proceeds of grain the reasonable and necessary costs and expenses allowable under section 503(b) of this title [11 USCS § 503(b)] attributable to preserving or disposing of grain or the proceeds of grain, but may not recover from such grain or the proceeds of grain any other costs or expenses.
(2) Notwithstanding section 326(a) of this title [11 USCS § 326(a)], the dollar amounts of money specified in such section include the value, as of the date of disposition, of any grain that the trustee distributes in kind.
(i) In all cases where the quantity of a specific type of grain held by a debtor operating a grain storage facility exceeds ten thousand bushels, such grain shall be sold by the trustee and the assets thereof distributed in accordance with the provi-sions of this section.
§ 558. Defenses of the estate
The estate shall have the benefit of any defense available to the debtor as against any entity other than the estate, including statutes of limitation, statutes of frauds, usury, and other personal defenses. A waiver of any such defense by the debtor after the commencement of the case does not bind the estate.
§ 559. Contractual right to liquidate, terminate, or accelerate a repurchase agreement
The exercise of a contractual right of a repo participant or financial participant to cause the liquidation, termination, or acceleration of a repurchase agreement because of a condition of the kind specified in section 365(e)(1) of this title [11 USCS § 365(e)(1)] shall not be stayed, avoided, or otherwise limited by operation of any provision of this title [11 USCS §§ 101 et seq.] or by order of a court or administrative agency in any proceeding under this title [11 USCS §§ 101 et seq.], unless, where the debtor is a stockbroker or securities clearing agency, such order is authorized under the provisions of the Securities Investor Protection Act of 1970 [15 USCS §§ 78aaa et seq.] or any statute administered by the Securities and Exchange Commission. In the event that a repo participant or financial participant liquidates one or more repurchase agreements with a debtor and under the terms of one or more such agreements has agreed to deliver assets subject to repurchase agreements to the debtor, any excess of the market prices received on liquidation of such assets (or if any such assets are not disposed of on the date of liquidation of such repurchase agreements, at the prices available at the time of liquidation of such repurchase agreements from a generally recognized source or the most recent closing bid quotation from such a source) over the sum of the stated repurchase prices and all expenses in connection with the liquidation of such repurchase agreements shall be deemed property of the estate, subject to the available rights of setoff. As used in this section, the term "contractual right" includes a right set forth in a rule or bylaw of a derivatives clearing organization (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]), a multilateral clearing organization (as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991), a national securities exchange, a national securities association, a securities clearing agency, a contract market designated under the Commodity Exchange Act [7 USCS §§ 1 et seq.], a derivatives transaction execution facility registered under the Commodity Exchange Act [7 USCS §§ 1 et seq.], or a board of trade (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]) or in a resolution of the governing board thereof and a right, whether or not evidenced in writing, arising under common law, under law merchant or by reason of normal business practice.
§ 560. Contractual right to liquidate, terminate, or accelerate a swap agreement
The exercise of any contractual right of any swap participant or financial participant to cause the liquidation, termination, or acceleration of one or more swap agreements because of a condition of the kind specified in section 365(e)(1) of this title [11 USCS § 365(e)(1)] or to offset or net out any termination values or payment amounts arising under or in con-nection with the termination, liquidation, or acceleration of one or more swap agreements shall not be stayed, avoided, or otherwise limited by operation of any provision of this title or by order of a court or administrative agency in any pro-ceeding under this title. As used in this section, the term "contractual right" includes a right set forth in a rule or bylaw of a derivatives clearing organization (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]), a multilateral clearing organization (as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991), a national securities exchange, a national securities association, a securities clearing agency, a contract market designated under the Commodity Exchange Act [7 USCS §§ 1 et seq.], a derivatives transaction execution facility registered under the Com-modity Exchange Act [7 USCS §§ 1 et seq.], or a board of trade (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]) or in a resolution of the governing board thereof and a right, whether or not evidenced in writing, arising under common law, under law merchant, or by reason of normal business practice.
§ 561. Contractual right to terminate, liquidate, accelerate, or offset under a master netting agreement and across con-tracts; proceedings under chapter 15
(a) Subject to subsection (b), the exercise of any contractual right, because of a condition of the kind specified in section 365(e)(1) [11 USCS § 365(e)(1)], to cause the termination, liquidation, or acceleration of or to offset or net termination values, payment amounts, or other transfer obligations arising under or in connection with one or more (or the termination, liquidation, or acceleration of one or more)--
(1) securities contracts, as defined in section 741(7) [11 USCS § 741(7)];
(2) commodity contracts, as defined in section 761(4) [11 USCS § 761(4)];
(3) forward contracts;
(4) repurchase agreements;
(5) swap agreements; or
(6) master netting agreements,
shall not be stayed, avoided, or otherwise limited by operation of any provision of this title or by any order of a court or administrative agency in any proceeding under this title.
(b) (1) A party may exercise a contractual right described in subsection (a) to terminate, liquidate, or accelerate only to the extent that such party could exercise such a right under section 555, 556, 559, or 560 [11 USCS § 555, 556, 559, or 560] for each individual contract covered by the master netting agreement in issue.
(2) If a debtor is a commodity broker subject to subchapter IV of chapter 7 [11 USCS §§ 761 et seq.]--
(A) a party may not net or offset an obligation to the debtor arising under, or in connection with, a commodity contract traded on or subject to the rules of a contract market designated under the Commodity Exchange Act [7 USCS §§ 1 et seq.] or a derivatives transaction execution facility registered under the Commodity Exchange Act [7 USCS §§ 1 et seq.] against any claim arising under, or in connection with, other instruments, contracts, or agreements listed in subsection (a) except to the extent that the party has positive net equity in the commodity accounts at the debtor, as calculated under such subchapter; and
(B) another commodity broker may not net or offset an obligation to the debtor arising under, or in connection with, a commodity contract entered into or held on behalf of a customer of the debtor and traded on or subject to the rules of a contract market designated under the Commodity Exchange Act [7 USCS §§ 1 et seq.] or a derivatives transaction execution facility registered under the Commodity Exchange Act [7 USCS §§ 1 et seq.] against any claim arising under, or in connection with, other instruments, contracts, or agreements listed in subsection (a).
(3) No provision of subparagraph (A) or (B) of paragraph (2) shall prohibit the offset of claims and obligations that arise under--
(A) a cross-margining agreement or similar arrangement that has been approved by the Commodity Futures Trading Commission or submitted to the Commodity Futures Trading Commission under paragraph (1) or (2) of section 5c(c) of the Commodity Exchange Act [7 USCS § 7a-2(c)] and has not been abrogated or rendered ineffective by the Commodity Futures Trading Commission; or
(B) any other netting agreement between a clearing organization (as defined in section 761 [11 USCS § 761]) and another entity that has been approved by the Commodity Futures Trading Commission.
(c) As used in this section, the term "contractual right" includes a right set forth in a rule or bylaw of a derivatives clearing organization (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]), a multilateral clearing organization (as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991), a national securities exchange, a national securities association, a securities clearing agency, a contract market designated under the Commodity Exchange Act [7 USCS §§ 1 et seq.], a derivatives transaction execution facility registered under the Commodity Exchange Act [7 USCS §§ 1 et seq.], or a board of trade (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]) or in a resolution of the governing board thereof, and a right, whether or not evidenced in writing, arising under common law, under law merchant, or by reason of normal business practice.
(d) Any provisions of this title relating to securities contracts, commodity contracts, forward contracts, repurchase agreements, swap agreements, or master netting agreements shall apply in a case under chapter 15 [11 USCS §§ 1501 et seq.], so that enforcement of contractual provisions of such contracts and agreements in accordance with their terms will not be stayed or otherwise limited by operation of any provision of this title or by order of a court in any case under this title, and to limit avoidance powers to the same extent as in a proceeding under chapter 7 or 11 of this title [11 USCS §§ 701 et seq. or 1101 et seq.] (such enforcement not to be limited based on the presence or absence of assets of the debtor in the United States).
§ 562. Timing of damage measurement in connection with swap agreements, securities contracts, forward contracts, commodity contracts, repurchase agreements, and master netting agreements
(a) If the trustee rejects a swap agreement, securities contract (as defined in section 741 [11 USCS § 741]), forward contract, commodity contract (as defined in section 761 [11 USCS § 761]), repurchase agreement, or master netting agreement pursuant to section 365(a) [11 USCS § 365(a)], or if a forward contract merchant, stockbroker, financial institution, securities clearing agency, repo participant, financial participant, master netting agreement participant, or swap participant liquidates, terminates, or accelerates such contract or agreement, damages shall be measured as of the earlier of--
(1) the date of such rejection; or
(2) the date or dates of such liquidation, termination, or acceleration.
(b) If there are not any commercially reasonable determinants of value as of any date referred to in paragraph (1) or (2) of subsection (a), damages shall be measured as of the earliest subsequent date or dates on which there are commercially reasonable determinants of value.
(c) For the purposes of subsection (b), if damages are not measured as of the date or dates of rejection, liquidation, termination, or acceleration, and the forward contract merchant, stockbroker, financial institution, securities clearing agency, repo participant, financial participant, master netting agreement participant, or swap participant or the trustee objects to the timing of the measurement of damages--
(1) the trustee, in the case of an objection by a forward contract merchant, stockbroker, financial institution, securities clearing agency, repo participant, financial participant, master netting agreement participant, or swap participant; or
(2) the forward contract merchant, stockbroker, financial institution, securities clearing agency, repo participant, financial participant, master netting agreement participant, or swap participant, in the case of an objection by the trustee,
has the burden of proving that there were no commercially reasonable determinants of value as of such date or dates.
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The exercise of a contractual right of a stockbroker, financial institution, financial participant, or securities clearing agency to cause the liquidation, termination, or acceleration of a securities contract, as defined in section 741 of this title [11 USCS § 741], because of a condition of the kind specified in section 365(e)(1) of this title [11 USCS § 365(e)(1)] shall not be stayed, avoided, or otherwise limited by operation of any provision of this title or by order of a court or administrative agency in any proceeding under this title unless such order is authorized under the provisions of the Securities Investor Protection Act of 1970 [15 USCS §§ 78aaa et seq.] or any statute administered by the Securities and Exchange Commission. As used in this section, the term "contractual right" includes a right set forth in a rule or bylaw of a derivatives clearing organization (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]), a multilateral clearing organization (as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991), a national securities exchange, a national securities association, a securities clearing agency, a contract market designated under the Com-modity Exchange Act [7 USCS §§ 1 et seq.], a derivatives transaction execution facility registered under the Commodity Exchange Act [7 USCS §§ 1 et seq.], or a board of trade (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]), or in a resolution of the governing board thereof, and a right, whether or not in writing, arising under common law, under law merchant, or by reason of normal business practice.
§ 556. Contractual right to liquidate, terminate, or accelerate a commodities contract or forward contract
The contractual right of a commodity broker, financial participant, or forward contract merchant to cause the liquidation, termination, or acceleration of a commodity contract, as defined in section 761 of this title [11 USCS § 761], or forward contract because of a condition of the kind specified in section 365(e)(1) of this title [11 USCS § 365(e)(1)], and the right to a variation or maintenance margin payment received from a trustee with respect to open commodity contracts or forward contracts, shall not be stayed, avoided, or otherwise limited by operation of any provision of this title or by the order of a court in any proceeding under this title. As used in this section, the term "contractual right" includes a right set forth in a rule or bylaw of a derivatives clearing organization (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]), a multilateral clearing organization (as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991), a national securities exchange, a national securities association, a securities clearing agency, a contract market designated under the Commodity Exchange Act [7 USCS §§ 1 et seq.], a derivatives transaction execution facility registered under the Commodity Exchange Act [7 USCS §§ 1 et seq.], or a board of trade (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]) or in a resolution of the governing board thereof and a right, whether or not evidenced in writing, arising under common law, under law merchant or by reason of normal business practice.
§ 557. Expedited determination of interests in, and abandonment or other disposition of grain assets
(a) This section applies only in a case concerning a debtor that owns or operates a grain storage facility and only with respect to grain and the proceeds of grain. This section does not affect the application of any other section of this title [11 USCS §§ 101 et seq.] to property other than grain and proceeds of grain.
(b) In this section--
(1) "grain" means wheat, corn, flaxseed, grain sorghum, barley, oats, rye, soybeans, other dry edible beans, or rice;
(2) "grain storage facility" means a site or physical structure regularly used to store grain for producers, or to store grain acquired from producers for resale; and
(3) "producer" means an entity which engages in the growing of grain.
(c) (1) Notwithstanding sections 362, 363, 365, and 554 of this title [11 USCS § 362, 363, 365, or 554], on the court's own motion the court may, and on the request of the trustee or an entity that claims an interest in grain or the proceeds of grain the court shall, expedite the procedures for the determination of interests in and the disposition of grain and the proceeds of grain, by shortening to the greatest extent feasible such time periods as are otherwise applicable for such procedures and by establishing, by order, a timetable having a duration of not to exceed 120 days for the completion of the applicable procedure specified in subsection (d) of this section. Such time periods and such timetable may be modified by the court, for cause, in accordance with subsection (f) of this section.
(2) The court shall determine the extent to which such time periods shall be shortened, based upon--
(A) any need of an entity claiming an interest in such grain or the proceeds of grain for a prompt determination of such interest;
(B) any need of such entity for a prompt disposition of such grain;
(C) the market for such grain;
(D) the conditions under which such grain is stored;
(E) the costs of continued storage or disposition of such grain;
(F) the orderly administration of the estate;
(G) the appropriate opportunity for an entity to assert an interest in such grain; and
(H) such other considerations as are relevant to the need to expedite such procedures in the case.
(d) The procedures that may be expedited under subsection (c) of this section include--
(1) the filing of and response to--
(A) a claim of ownership;
(B) a proof of claim;
(C) a request for abandonment;
(D) a request for relief from the stay of action against property under section 362(a) of this title [11 USCS § 362(a)];
(E) a request for determination of secured status;
(F) a request for determination of whether such grain or the proceeds of grain--
(i) is property of the estate;
(ii) must be turned over to the estate; or
(iii) may be used, sold, or leased; and
(G) any other request for determination of an interest in such grain or the proceeds of grain;
(2) the disposition of such grain or the proceeds of grain, before or after determination of interests in such grain or the proceeds of grain, by way of--
(A) sale of such grain;
(B) abandonment;
(C) distribution; or
(D) such other method as is equitable in the case;
(3) subject to sections 701, 702, 703, 1104, 1202, and 1302 of this title [11 USCS §§ 701, 702, 703, 1104, 1202, and 1302], the appointment of a trustee or examiner and the retention and compensation of any professional person required to assist with respect to matters relevant to the determination of interests in or disposition of such grain or the proceeds of grain; and
(4) the determination of any dispute concerning a matter specified in paragraph (1), (2), or (3) of this subsection.
(e) (1) Any governmental unit that has regulatory jurisdiction over the operation or liquidation of the debtor or the debtor's business shall be given notice of any request made or order entered under subsection (c) of this section.
(2) Any such governmental unit may raise, and may appear and be heard on, any issue relating to grain or the proceeds of grain in a case in which a request is made, or an order is entered, under subsection (c) of this section.
(3) The trustee shall consult with such governmental unit before taking any action relating to the disposition of grain in the possession, custody, or control of the debtor or the estate.
(f) The court may extend the period for final disposition of grain or the proceeds of grain under this section beyond 120 days if the court finds that--
(1) the interests of justice so require in light of the complexity of the case; and
(2) the interests of those claimants entitled to distribution of grain or the proceeds of grain will not be materially injured by such additional delay.
(g) Unless an order establishing an expedited procedure under subsection (c) of this section, or determining any interest in or approving any disposition of grain or the proceeds of grain, is stayed pending appeal--
(1) the reversal or modification of such order on appeal does not affect the validity of any procedure, determination, or disposition that occurs before such reversal or modification, whether or not any entity knew of the pendency of the appeal; and
(2) neither the court nor the trustee may delay, due to the appeal of such order, any proceeding in the case in which such order is issued.
(h) (1) The trustee may recover from grain and the proceeds of grain the reasonable and necessary costs and expenses allowable under section 503(b) of this title [11 USCS § 503(b)] attributable to preserving or disposing of grain or the proceeds of grain, but may not recover from such grain or the proceeds of grain any other costs or expenses.
(2) Notwithstanding section 326(a) of this title [11 USCS § 326(a)], the dollar amounts of money specified in such section include the value, as of the date of disposition, of any grain that the trustee distributes in kind.
(i) In all cases where the quantity of a specific type of grain held by a debtor operating a grain storage facility exceeds ten thousand bushels, such grain shall be sold by the trustee and the assets thereof distributed in accordance with the provi-sions of this section.
§ 558. Defenses of the estate
The estate shall have the benefit of any defense available to the debtor as against any entity other than the estate, including statutes of limitation, statutes of frauds, usury, and other personal defenses. A waiver of any such defense by the debtor after the commencement of the case does not bind the estate.
§ 559. Contractual right to liquidate, terminate, or accelerate a repurchase agreement
The exercise of a contractual right of a repo participant or financial participant to cause the liquidation, termination, or acceleration of a repurchase agreement because of a condition of the kind specified in section 365(e)(1) of this title [11 USCS § 365(e)(1)] shall not be stayed, avoided, or otherwise limited by operation of any provision of this title [11 USCS §§ 101 et seq.] or by order of a court or administrative agency in any proceeding under this title [11 USCS §§ 101 et seq.], unless, where the debtor is a stockbroker or securities clearing agency, such order is authorized under the provisions of the Securities Investor Protection Act of 1970 [15 USCS §§ 78aaa et seq.] or any statute administered by the Securities and Exchange Commission. In the event that a repo participant or financial participant liquidates one or more repurchase agreements with a debtor and under the terms of one or more such agreements has agreed to deliver assets subject to repurchase agreements to the debtor, any excess of the market prices received on liquidation of such assets (or if any such assets are not disposed of on the date of liquidation of such repurchase agreements, at the prices available at the time of liquidation of such repurchase agreements from a generally recognized source or the most recent closing bid quotation from such a source) over the sum of the stated repurchase prices and all expenses in connection with the liquidation of such repurchase agreements shall be deemed property of the estate, subject to the available rights of setoff. As used in this section, the term "contractual right" includes a right set forth in a rule or bylaw of a derivatives clearing organization (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]), a multilateral clearing organization (as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991), a national securities exchange, a national securities association, a securities clearing agency, a contract market designated under the Commodity Exchange Act [7 USCS §§ 1 et seq.], a derivatives transaction execution facility registered under the Commodity Exchange Act [7 USCS §§ 1 et seq.], or a board of trade (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]) or in a resolution of the governing board thereof and a right, whether or not evidenced in writing, arising under common law, under law merchant or by reason of normal business practice.
§ 560. Contractual right to liquidate, terminate, or accelerate a swap agreement
The exercise of any contractual right of any swap participant or financial participant to cause the liquidation, termination, or acceleration of one or more swap agreements because of a condition of the kind specified in section 365(e)(1) of this title [11 USCS § 365(e)(1)] or to offset or net out any termination values or payment amounts arising under or in con-nection with the termination, liquidation, or acceleration of one or more swap agreements shall not be stayed, avoided, or otherwise limited by operation of any provision of this title or by order of a court or administrative agency in any pro-ceeding under this title. As used in this section, the term "contractual right" includes a right set forth in a rule or bylaw of a derivatives clearing organization (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]), a multilateral clearing organization (as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991), a national securities exchange, a national securities association, a securities clearing agency, a contract market designated under the Commodity Exchange Act [7 USCS §§ 1 et seq.], a derivatives transaction execution facility registered under the Com-modity Exchange Act [7 USCS §§ 1 et seq.], or a board of trade (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]) or in a resolution of the governing board thereof and a right, whether or not evidenced in writing, arising under common law, under law merchant, or by reason of normal business practice.
§ 561. Contractual right to terminate, liquidate, accelerate, or offset under a master netting agreement and across con-tracts; proceedings under chapter 15
(a) Subject to subsection (b), the exercise of any contractual right, because of a condition of the kind specified in section 365(e)(1) [11 USCS § 365(e)(1)], to cause the termination, liquidation, or acceleration of or to offset or net termination values, payment amounts, or other transfer obligations arising under or in connection with one or more (or the termination, liquidation, or acceleration of one or more)--
(1) securities contracts, as defined in section 741(7) [11 USCS § 741(7)];
(2) commodity contracts, as defined in section 761(4) [11 USCS § 761(4)];
(3) forward contracts;
(4) repurchase agreements;
(5) swap agreements; or
(6) master netting agreements,
shall not be stayed, avoided, or otherwise limited by operation of any provision of this title or by any order of a court or administrative agency in any proceeding under this title.
(b) (1) A party may exercise a contractual right described in subsection (a) to terminate, liquidate, or accelerate only to the extent that such party could exercise such a right under section 555, 556, 559, or 560 [11 USCS § 555, 556, 559, or 560] for each individual contract covered by the master netting agreement in issue.
(2) If a debtor is a commodity broker subject to subchapter IV of chapter 7 [11 USCS §§ 761 et seq.]--
(A) a party may not net or offset an obligation to the debtor arising under, or in connection with, a commodity contract traded on or subject to the rules of a contract market designated under the Commodity Exchange Act [7 USCS §§ 1 et seq.] or a derivatives transaction execution facility registered under the Commodity Exchange Act [7 USCS §§ 1 et seq.] against any claim arising under, or in connection with, other instruments, contracts, or agreements listed in subsection (a) except to the extent that the party has positive net equity in the commodity accounts at the debtor, as calculated under such subchapter; and
(B) another commodity broker may not net or offset an obligation to the debtor arising under, or in connection with, a commodity contract entered into or held on behalf of a customer of the debtor and traded on or subject to the rules of a contract market designated under the Commodity Exchange Act [7 USCS §§ 1 et seq.] or a derivatives transaction execution facility registered under the Commodity Exchange Act [7 USCS §§ 1 et seq.] against any claim arising under, or in connection with, other instruments, contracts, or agreements listed in subsection (a).
(3) No provision of subparagraph (A) or (B) of paragraph (2) shall prohibit the offset of claims and obligations that arise under--
(A) a cross-margining agreement or similar arrangement that has been approved by the Commodity Futures Trading Commission or submitted to the Commodity Futures Trading Commission under paragraph (1) or (2) of section 5c(c) of the Commodity Exchange Act [7 USCS § 7a-2(c)] and has not been abrogated or rendered ineffective by the Commodity Futures Trading Commission; or
(B) any other netting agreement between a clearing organization (as defined in section 761 [11 USCS § 761]) and another entity that has been approved by the Commodity Futures Trading Commission.
(c) As used in this section, the term "contractual right" includes a right set forth in a rule or bylaw of a derivatives clearing organization (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]), a multilateral clearing organization (as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991), a national securities exchange, a national securities association, a securities clearing agency, a contract market designated under the Commodity Exchange Act [7 USCS §§ 1 et seq.], a derivatives transaction execution facility registered under the Commodity Exchange Act [7 USCS §§ 1 et seq.], or a board of trade (as defined in the Commodity Exchange Act [7 USCS §§ 1 et seq.]) or in a resolution of the governing board thereof, and a right, whether or not evidenced in writing, arising under common law, under law merchant, or by reason of normal business practice.
(d) Any provisions of this title relating to securities contracts, commodity contracts, forward contracts, repurchase agreements, swap agreements, or master netting agreements shall apply in a case under chapter 15 [11 USCS §§ 1501 et seq.], so that enforcement of contractual provisions of such contracts and agreements in accordance with their terms will not be stayed or otherwise limited by operation of any provision of this title or by order of a court in any case under this title, and to limit avoidance powers to the same extent as in a proceeding under chapter 7 or 11 of this title [11 USCS §§ 701 et seq. or 1101 et seq.] (such enforcement not to be limited based on the presence or absence of assets of the debtor in the United States).
§ 562. Timing of damage measurement in connection with swap agreements, securities contracts, forward contracts, commodity contracts, repurchase agreements, and master netting agreements
(a) If the trustee rejects a swap agreement, securities contract (as defined in section 741 [11 USCS § 741]), forward contract, commodity contract (as defined in section 761 [11 USCS § 761]), repurchase agreement, or master netting agreement pursuant to section 365(a) [11 USCS § 365(a)], or if a forward contract merchant, stockbroker, financial institution, securities clearing agency, repo participant, financial participant, master netting agreement participant, or swap participant liquidates, terminates, or accelerates such contract or agreement, damages shall be measured as of the earlier of--
(1) the date of such rejection; or
(2) the date or dates of such liquidation, termination, or acceleration.
(b) If there are not any commercially reasonable determinants of value as of any date referred to in paragraph (1) or (2) of subsection (a), damages shall be measured as of the earliest subsequent date or dates on which there are commercially reasonable determinants of value.
(c) For the purposes of subsection (b), if damages are not measured as of the date or dates of rejection, liquidation, termination, or acceleration, and the forward contract merchant, stockbroker, financial institution, securities clearing agency, repo participant, financial participant, master netting agreement participant, or swap participant or the trustee objects to the timing of the measurement of damages--
(1) the trustee, in the case of an objection by a forward contract merchant, stockbroker, financial institution, securities clearing agency, repo participant, financial participant, master netting agreement participant, or swap participant; or
(2) the forward contract merchant, stockbroker, financial institution, securities clearing agency, repo participant, financial participant, master netting agreement participant, or swap participant, in the case of an objection by the trustee,
has the burden of proving that there were no commercially reasonable determinants of value as of such date or dates.
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