Section 618-A. Repudiation of contracts

1. Except as otherwise provided in
  this  section,  when  the  superintendent  has  taken  possession of the
  business and property in this state of a  banking  organization,  unless
  the federal regulator or insurer is appointed as receiver or liquidator,
  the  superintendent  may  assume or repudiate any contract, including an
  unexpired lease, of the banking organization: (a) to which such  banking
  organization   is   a   party,   (b)   the   performance  of  which  the
  superintendent, in the superintendent's  discretion,  determines  to  be
  burdensome,   and  (c)  the  repudiation  of  which  the  superintendent
  determines, in the superintendent's discretion, will promote the orderly
  administration  of  the  banking  organization's  affairs.   After   the
  expiration  of  ninety  days from the date that the superintendent takes
  possession of the banking organization, any party to a contract with the
  banking organization being liquidated may demand  in  writing  that  the
  superintendent  assume or repudiate such contract. If the superintendent
  has not assumed or repudiated the contract within fifteen calendar  days
  from  the  date  of  receipt  of  the  demand by the superintendent, the
  affected party may bring an action in the supreme court in the  judicial
  district  in  which  the principal office of the banking organization is
  located to obtain  an  order  requiring  the  superintendent  to  decide
  whether to assume or repudiate that contract.  If the superintendent has
  not  assumed  or repudiated a contract by one month before the last date
  for filing claims against  the  banking  organization  being  liquidated
  pursuant  to  section  six hundred twenty of this article, such contract
  shall be deemed repudiated. Notwithstanding the foregoing, with  respect
  to an unexpired lease of the banking organization for the rental of real
  property  under  which  the  banking  organization  was a lessee, if the
  superintendent   remains   in   possession   of   the   leasehold,   the
  superintendent  shall  not be required to assume or repudiate such lease
  and may continue in possession of such leasehold for  the  remainder  of
  the  term  of  the  lease  in  accordance  with  the terms of the lease;
  provided, however, that should the superintendent  later  repudiate  the
  lease  before the end of the lease term, any amounts that may be due the
  lessor due to such repudiation shall  be  calculated  according  to  the
  provisions  of  paragraph  (a)  of  subdivision  three  of this section.
  Notwithstanding any other provision contained in  this  subdivision,  in
  liquidating  a  branch  or  agency of a foreign banking corporation, the
  superintendent shall not assume or  repudiate  any  qualified  financial
  contract  that  the  branch or agency entered into which is subject to a
  multi-branch netting agreement or arrangement that provides for  netting
  present or future payment obligations or payment entitlements (including
  termination   or   close-out  values  relating  to  the  obligations  or
  entitlements) among  the  parties  to  the  contract  and  agreement  or
  arrangement  and  the  superintendent shall not be required to assume or
  repudiate any other qualified financial  contract  that  the  branch  or
  agency entered into; provided, however, that upon any repudiation of any
  qualified  financial  contract  or the termination or liquidation of any
  qualified financial contract in accordance with its terms, the liability
  of the superintendent under such qualified financial contract  shall  be
  determined in accordance with subdivision two of this section.
    2.  (a)  Except  as  otherwise  provided  in  this  section,  upon the
  repudiation or termination of any contract pursuant to  subdivision  one
  of this section, the liability of the superintendent shall be limited to
  the  actual  direct compensatory damages of the parties to the contract,
  determined as of the date the  superintendent  took  possession  of  the
  banking  organization.  The  superintendent  shall not be liable for any
  future wages other than severance payments (to the extent such  payments
  are reasonable), or for payments for future services, costs of cover, or

  any  consequential,  punitive  or  exemplary  damages,  damages for lost
  profits or lost opportunity or damages for pain and suffering.
    (b) Except as otherwise provided in this section, the liability of the
  superintendent upon the repudiation of any qualified financial contract,
  or  in  connection  with the termination or liquidation of any qualified
  financial contract in  accordance  with  the  terms  thereof,  shall  be
  limited  as  provided  in paragraph (a) of this subdivision, except that
  compensatory damages shall be deemed to include  normal  and  reasonable
  costs  of  cover  or other reasonable measures of damages utilized among
  participants in the market  for  qualified  financial  contract  claims,
  calculated  as of the date of repudiation or the date of the termination
  of such qualified financial contract in accordance with its terms.  Upon
  the  repudiation  of  any  qualified financial contract or in connection
  with the termination or liquidation of any qualified financial  contract
  in  accordance  with  the  terms thereof, if the superintendent shall be
  entitled to damages, such damages shall be paid over by the party to the
  superintendent upon  written  demand  pursuant  to  subdivision  two  of
  section  six  hundred  fifteen  of  this  article,  notwithstanding  any
  provision in any such contract that purports to effect a  forfeiture  of
  such damages.
    (c)  In the case of the liquidation of a branch or agency of a foreign
  banking corporation by the superintendent,  with  respect  to  qualified
  financial  contracts  subject to netting agreements or arrangements that
  provide for netting present or future  payment  obligations  or  payment
  entitlements  (including termination or close-out values relating to the
  obligations or entitlements) among the  parties  to  the  contracts  and
  agreements  or  arrangements, the liability of the superintendent to any
  party to any such qualified financial contract upon  repudiation  or  in
  connection  with  the  termination  or  liquidation  of  such  qualified
  financial contract in  accordance  with  the  terms  thereof,  shall  be
  calculated  as of the date of repudiation or the date of the termination
  of such qualified financial contract in accordance with  its  terms  and
  shall  be limited to the lesser of (i) the global net payment obligation
  and (ii) the branch/agency net payment obligation. The liability of  the
  superintendent  under  this  paragraph  shall  be  reduced by any amount
  otherwise paid to or received by the party in respect of the global  net
  payment  obligation  pursuant to such qualified financial contract which
  if added to the liability of the  superintendent  under  this  paragraph
  would  exceed  the  global  net payment obligation. The liability of the
  superintendent under this paragraph to a party to a qualified  financial
  contract also shall be reduced by the fair market value or the amount of
  any  proceeds of collateral that secures and has been applied to satisfy
  the obligations of the foreign  banking  corporation  pursuant  to  such
  qualified  financial  contract  to  the party. In the event that netting
  under the applicable netting  agreement  or  arrangement  results  in  a
  branch/agency  net payment entitlement, notwithstanding any provision in
  any  such  contract  that  purports  to  effect  a  forfeiture  of  such
  entitlement,  the  superintendent may make written demand upon the party
  to such contract under subdivision two of section six hundred fifteen of
  this article for an amount not to exceed the lesser of  (x)  the  global
  net   payment   entitlement   and  (y)  the  branch/agency  net  payment
  entitlement. The liability of the party under this  paragraph  shall  be
  reduced   by   any   amount   otherwise  paid  to  or  received  by  the
  superintendent or any  other  liquidator  or  receiver  of  the  foreign
  banking  corporation  in  respect  of the global net payment entitlement
  pursuant to such qualified financial contract  which  if  added  to  the
  liability  of the party under this paragraph would exceed the global net
  payment entitlement. The liability of the party under this paragraph  to

  the  superintendent  pursuant  to such qualified financial contract also
  shall be reduced by the fair market value or the amount of any  proceeds
  of  collateral  that  secures  and  has  been  applied  to  satisfy  the
  obligations  of  the party pursuant to such qualified financial contract
  to the foreign banking corporation.
    (d) A party to a qualified financial contract with a  foreign  banking
  corporation,  the  branch  or  agency  of  which  the  superintendent is
  liquidating,  which  party  has  a  perfected   security   interest   in
  collateral,  or  other  valid  lien  or  security interest in collateral
  enforceable against third parties pursuant  to  a  security  arrangement
  related  to  such  qualified  financial  contract,  may  retain all such
  collateral and upon repudiation of that qualified financial contract, or
  in connection with the termination  or  liquidation  of  that  qualified
  financial  contract  in  accordance  with  its terms thereof, apply such
  collateral in satisfaction of any  claims  secured  by  the  collateral,
  provided  that  the  total  amount so applied to such claims shall in no
  event exceed the global net payment obligation, if any.
    (e) The  following  terms  shall  have  the  following  meanings:  (i)
  "qualified  financial contract" means any securities contract, commodity
  contract,  forward  contract  (including  spot   and   forward   foreign
  exchange),   repurchase  agreement,  swap  agreement,  and  any  similar
  agreement, any option to enter into any such  agreement,  including  any
  combination  of  the  foregoing,  and  any  master  agreement  for  such
  agreements  (such  master  agreement,  together  with  all   supplements
  thereto, shall be treated as one qualified financial contract), provided
  that  such  contract,  option or agreement, or combination of contracts,
  options or agreements is reflected in the books, accounts or records  of
  the  banking  organization  or  a party provides documentary evidence of
  such agreement; the superintendent may define by  regulation  securities
  contract, commodity contract, forward contract, repurchase agreement and
  swap  agreement,  and  may  by  regulation  or order determine any other
  agreement to be a qualified financial  contract  for  purposes  of  this
  paragraph;  (ii)  "global  net  payment obligation" means the amount, if
  any, owed by a foreign banking corporation as a whole to a  party  after
  giving  effect  to  the  netting  provisions  of  a  qualified financial
  contract with respect to all transactions subject to netting under  such
  qualified  financial  contract;  (iii)  "global net payment entitlement"
  means the amount, if any, owed by a party (or that would be owed if  the
  relevant   agreements  provided  for  payments  to  either  party,  upon
  termination thereof under  any  and  all  circumstances)  to  a  foreign
  banking  corporation  as  a  whole  after  giving  effect to the netting
  provisions of  a  qualified  financial  contract  with  respect  to  all
  transactions subject to netting under such qualified financial contract;
  (iv)  "branch/agency  net  payment  obligation"  means with respect to a
  qualified financial contact the amount, if any,  that  would  have  been
  owed  by  the  foreign banking corporation to a party after netting only
  those transactions entered into by the branch or agency and  such  party
  under  such  qualified  financial  contract;  and (v) "branch/agency net
  payment  entitlement"  means  with  respect  to  a  qualified  financial
  contract the amount, if any, that would have been owed by a party to the
  foreign  banking  corporation  after  netting  only  those  transactions
  entered into by the branch or agency and such party under such qualified
  financial contract. The superintendent shall have authority to prescribe
  such regulations relating to qualified financial contracts  and  netting
  thereof as the superintendent shall deem appropriate.
    3.  (a)  If  the  superintendent  repudiates  a  lease  of the banking
  organization for the rental of real or personal property under which the
  banking organization was a lessee, the lessor under such lease shall  be

  entitled  to  file  a claim with the superintendent for whichever is the
  least amount  of:  (i)  the  amount  designated  as  liquidated  damages
  contained  in  the  agreement  between  the banking organization and the
  lessor,  (ii)  an amount equal to one year's rent under the terms of the
  repudiated lease, or (iii) an amount equal to the rent for the remaining
  term of the lease.
    (b)  If  the  superintendent  repudiates  a  lease  of   the   banking
  organization  for  the  rental  of real property under which the banking
  organization was a lessor, and the lessee was not in default at the time
  of repudiation, the lessee under such repudiated lease  may  either  (i)
  treat  the  lease  as  terminated  by  such  repudiation  and vacate the
  premises, or (ii) remain in possession of the leasehold interest for the
  balance of the term of the lease, and for any renewal  or  extension  of
  such   term   that  is  enforceable  by  such  lessee  under  applicable
  non-insolvency law, unless the lessee defaults under the  terms  of  the
  lease  after  the  date  of  such  repudiation. If the lessee remains in
  possession of the leasehold interest, the lessee shall continue  to  pay
  to  the superintendent the contractual rent pursuant to the terms of the
  lease after the date of the repudiation of such lease,  and  may  offset
  against  such  rent  payment  any  damages  which  may accrue due to the
  nonperformance of any obligation of the banking organization  under  the
  lease  after  the  date  of repudiation. The superintendent shall not be
  liable to the lessee for any damages arising after such date as a result
  of the repudiation other than the amount of  any  offset  allowed  under
  this   subdivision.   Nothing   stated   herein   shall   prohibit   the
  superintendent from entering into a new contract with the lessee for the
  rental of the leasehold which was the subject of the repudiated lease.
    4. Except as otherwise provided, notwithstanding any provision  in  an
  unexpired  lease  or other contract, or in applicable law, a contract or
  unexpired lease of the banking organization may  not  be  terminated  or
  modified  by  any  party  other  than  the  superintendent  without  the
  concurrence of the superintendent, and any  right  or  obligation  under
  such  contract  or  lease may not be terminated or modified, at any time
  after the superintendent's taking of possession, solely  pursuant  to  a
  provision  in  such  contract  or  lease  that  is  conditioned  on  the
  superintendent's taking of  possession,  or  the  insolvency,  financial
  condition or liquidation of the banking organization.
    5.  Nothing  in  this  section  shall affect the right of a party to a
  contract of a foreign banking corporation to seek  performance  of  such
  contract  or  damages  thereon  in  any  other  jurisdiction,  provided,
  however, that the superintendent shall not be liable for the performance
  of such contract or damages thereon in any other jurisdiction.
    6. The rights granted herein are  in  addition  to  any  other  rights
  available to the superintendent under common law or any other law.