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Tract Merchants, Commodity Brokers, Stock § 753 TITLE 11—BANKRUPTCY Page 208 except as otherwise provided, see section 1501 of Pub. L. (ii) with respect to a futures commission 109–8, set out as a note under section 101 of this title. merchant or a clearing organization, any EFFECTIVE DATE OF 1984 AMENDMENT other contract, option, agreement, or trans- action, in each case, that is cleared by a Amendment by Pub. L. 98–353 effective with respect clearing organization; to cases filed 90 days after July 10, 1984, see section (G) any combination of the agreements or 552(a) of Pub. L. 98–353, set out as a note under section transactions referred to in this paragraph; 101 of this title. (H) any option to enter into an agreement § 753. Stockbroker liquidation and forward con- or transaction referred to in this paragraph; tract merchants, commodity brokers, stock- (I) a master agreement that provides for brokers, financial institutions, financial par- an agreement or transaction referred to in ticipants, securities clearing agencies, swap subparagraph (A), (B), (C), (D), (E), (F), (G), participants, repo participants, and master or (H), together with all supplements to such netting agreement participants master agreement, without regard to wheth- er the master agreement provides for an Notwithstanding any other provision of this agreement or transaction that is not a com- title, the exercise of rights by a forward con- modity contract under this paragraph, ex- tract merchant, commodity broker, stock- cept that the master agreement shall be con- broker, financial institution, financial partici- sidered to be a commodity contract under pant, securities clearing agency, swap partici- this paragraph only with respect to each pant, repo participant, or master netting agree- agreement or transaction under the master ment participant under this title shall not affect agreement that is referred to in subpara- the priority of any unsecured claim it may have graph (A), (B), (C), (D), (E), (F), (G), or (H); after the exercise of such rights. or (Added Pub. L. 109–8, title IX, § 907(m), Apr. 20, (J) any security agreement or arrange- 2005, 119 Stat. 181.) ment or other credit enhancement related to any agreement or transaction referred to in EFFECTIVE DATE this paragraph, including any guarantee or Section effective 180 days after Apr. 20, 2005, and not reimbursement obligation by or to a com- applicable with respect to cases commenced under this modity broker or financial participant in title before such effective date, except as otherwise connection with any agreement or trans- provided, see section 1501 of Pub. L. 109–8, set out as an action referred to in this paragraph, but not Effective Date of 2005 Amendment note under section to exceed the damages in connection with 101 of this title. any such agreement or transaction, meas- ured in accordance with section 562; SUBCHAPTER IV—COMMODITY BROKER LIQUIDATION (5) ‘‘commodity option’’ means agreement or transaction subject to regulation under sec- § 761. Definitions for this subchapter tion 4c(b) of the Act; (6) ‘‘commodity options dealer’’ means per- In this subchapter— son that extends credit to, or that accepts (1) ‘‘Act’’ means Commodity Exchange Act; cash, a security, or other property from, a cus- (2) ‘‘clearing organization’’ means a deriva- tomer of such person for the purchase or sale tives clearing organization registered under of an interest in a commodity option; the Act; (7) ‘‘contract market’’ means a registered (3) ‘‘Commission’’ means Commodity Fu- entity; tures Trading Commission; (8) ‘‘contract of sale’’, ‘‘commodity’’, ‘‘de- (4) ‘‘commodity contract’’ means— rivatives clearing organization’’, ‘‘future de- (A) with respect to a futures commission livery’’, ‘‘board of trade’’, ‘‘registered entity’’, merchant, contract for the purchase or sale and ‘‘futures commission merchant’’ have the of a commodity for future delivery on, or meanings assigned to those terms in the Act; subject to the rules of, a contract market or (9) ‘‘customer’’ means— board of trade; (A) with respect to a futures commission (B) with respect to a foreign futures com- merchant— mission merchant, foreign future; (i) entity for or with whom such futures (C) with respect to a leverage transaction commission merchant deals and that holds merchant, leverage transaction; a claim against such futures commission (D) with respect to a clearing organiza- merchant on account of a commodity con- tion, contract for the purchase or sale of a tract made, received, acquired, or held by commodity for future delivery on, or subject or through such futures commission mer- to the rules of, a contract market or board chant in the ordinary course of such fu- of trade that is cleared by such clearing or- tures commission merchant’s business as a ganization, or commodity option traded on, futures commission merchant from or for or subject to the rules of, a contract market a commodity contract account of such en- or board of trade that is cleared by such tity; or clearing organization; (ii) entity that holds a claim against (E) with respect to a commodity options such futures commission merchant arising dealer, commodity option; out of— (F)(i) any other contract, option, agree- (I) the making, liquidation, or change ment, or transaction that is similar to a in the value of a commodity contract of contract, option, agreement, or transaction a kind specified in clause (i) of this sub- referred to in this paragraph; and paragraph; Page 209 TITLE 11—BANKRUPTCY § 761 (II) a deposit or payment of cash, a se- (E) with respect to a commodity options curity, or other property with such fu- dealer— tures commission merchant for the pur- (i) entity for or with whom such com- pose of making or margining such a com- modity options dealer deals and that holds modity contract; or a claim on account of a commodity con- (III) the making or taking of delivery tract made, received, acquired, or held by on such a commodity contract; or through such commodity options dealer (B) with respect to a foreign futures com- in the ordinary course of such commodity mission merchant— options dealer’s business as a commodity (i) entity for or with whom such foreign options dealer from or for the commodity futures commission merchant deals and options account of such entity; or that holds a claim against such foreign fu- (ii) entity that holds a claim against tures commission merchant on account of such commodity options dealer arising out a commodity contract made, received, ac- of— quired, or held by or through such foreign (I) the making of, liquidation of, exer- futures commission merchant in the ordi- cise of, or a change in value of, a com- nary course of such foreign futures com- modity contract of a kind specified in mission merchant’s business as a foreign clause (i) of this subparagraph; or futures commission merchant from or for (II) a deposit or payment of cash, a se- the foreign futures account of such entity; curity, or other property with such com- or modity options dealer for the purpose of (ii) entity that holds a claim against making, exercising, or margining such a such foreign futures commission merchant commodity contract; arising out of— (10) ‘‘customer property’’ means cash, a se- (I) the making, liquidation, or change curity, or other property, or proceeds of such in value of a commodity contract of a cash, security, or property, received, acquired, kind specified in clause (i) of this sub- or held by or for the account of the debtor, paragraph; from or for the account of a customer— (II) a deposit or payment of cash, a se- (A) including— curity, or other property with such for- (i) property received, acquired, or held to eign futures commission merchant for margin, guarantee, secure, purchase, or the purpose of making or margining such sell a commodity contract; a commodity contract; or (ii) profits or contractual or other rights (III) the making or taking of delivery accruing to a customer as a result of a on such a commodity contract; commodity contract; (C) with respect to a leverage transaction (iii) an open commodity contract; merchant— (iv) specifically identifiable customer (i) entity for or with whom such leverage property; transaction merchant deals and that holds (v) warehouse receipt or other document a claim against such leverage transaction held by the debtor evidencing ownership of merchant on account of a commodity con- or title to property to be delivered to ful- tract engaged in by or with such leverage fill a commodity contract from or for the transaction merchant in the ordinary account of a customer; course of such leverage transaction mer- (vi) cash, a security, or other property chant’s business as a leverage transaction received by the debtor as payment for a merchant from or for the leverage account commodity to be delivered to fulfill a com- of such entity; or modity contract from or for the account of (ii) entity that holds a claim against a customer; such leverage transaction merchant aris- (vii) a security held as property of the ing out of— debtor to the extent such security is nec- (I) the making, liquidation, or change essary to meet a net equity claim based on in value of a commodity contract of a a security of the same class and series of kind specified in clause (i) of this sub- an issuer; paragraph; (viii) property that was unlawfully con- (II) a deposit or payment of cash, a se- verted from and that is the lawful property curity, or other property with such le- of the estate; and verage transaction merchant for the pur- (ix) other property
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