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TITLE 11.
BANKRUPTCY · UNITED STATES CODE
Chapter 5.
Creditors, the Debtor and the Estate
Subchapter III. The Estate
11
USC § 561. Contractual right to terminate, liquidate,
accelerate, or offset under a master netting agreement and across contracts;
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), 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).
[Rev. 5-19-05]
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