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(a) Subject to subsection
(b), the exercise of any
contractual right, because of a condition of the kind specified
in section
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);
(2)
commodity contracts, as
defined in section
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 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—
(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
or a derivatives transaction execution facility registered
under the Commodity Exchange Act
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
or a derivatives transaction execution facility registered
under the Commodity Exchange Act
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
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) 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),
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,
a derivatives transaction execution facility registered
under the Commodity Exchange Act,
or a board of trade (as defined in the Commodity Exchange
Act)
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, 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 (such enforcement not to be limited based
on the presence or absence of assets of the
debtor in the
United States).
(Added Pub. L.
109-8, Title IX, §
907(k)(i), April 20, 2005, 119 Stat. 179.)
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