§ 4402. Definitions

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For purposes of this subchapter—

(1)Broker or dealer The term “broker or dealer” means—

(A)any company that is registered or licensed under Federal or State law to engage in the business of brokering, underwriting, or dealing in securities in the United States; and

(B)to the extent consistent with this title,1 as determined by the Board of Governors of the Federal Reserve System, any company that is an affiliate of a company described in subparagraph

(A)and that is engaged in the business of entering into netting contracts.

(2)Clearing organization The term “clearing organization” means a clearinghouse, clearing association, clearing corporation, or similar organization—

(A)that provides clearing, netting, or settlement services for its members and—

(i)in which all members other than the clearing organization itself are financial institutions or other clearing organizations; or

(ii)which is registered as a clearing agency under the Securities Exchange Act of 1934 [15 U.S.C. 78a et seq.], or is exempt from such registration by order of the Securities and Exchange Commission; or

(B)that is registered as a derivatives clearing organization under section 7a–1 of title 7, that has been granted an exemption under section 6(c)(1) of title 7, or that is a multilateral clearing organization (as defined in section 4421 1 of this title).

(3)Covered clearing obligation The term “covered clearing obligation” means an obligation of a member of a clearing organization to make payment to another member of a clearing organization, subject to a netting contract.

(4)Covered contractual payment entitlement The term “covered contractual payment entitlement” means—

(A)an entitlement of a financial institution to receive a payment, subject to a netting contract from another financial institution; and

(B)an entitlement of a member of a clearing organization to receive payment, subject to a netting contract, from another member of a clearing organization of a covered clearing obligation.

(5)Covered contractual payment obligation The term “covered contractual payment obligation” means—

(A)an obligation of a financial institution to make payment, subject to a netting contract to another financial institution; and

(B)a covered clearing obligation.

(6)Depository institution The term “depository institution” means—

(A)a depository institution as defined in section 19(b)(1)(A) of the Federal Reserve Act [12 U.S.C. 461(b)(1)(A)] (other than clause (vii));

(B)an uninsured national bank or an uninsured State bank that is a member of the Federal Reserve System, if the national bank or State member bank is not eligible to make application to become an insured bank under section 1815 of this title;

(C)a branch or agency of a foreign bank, a foreign bank and any branch or agency of the foreign bank, or the foreign bank that established the branch or agency, as those terms are defined in section 1(b) of the International Banking Act of 1978 [12 U.S.C. 3101];

(D)a corporation chartered under section 25(a) 1 of the Federal Reserve Act [12 U.S.C. 611 et seq.]; or

(E)a corporation having an agreement or undertaking with the Board of Governors of the Federal Reserve System under section 25 of the Federal Reserve Act [12 U.S.C. 601 et seq.].

(7)Failed financial institution The term “failed financial institution” means a financial institution that—

(A)fails to satisfy a covered contractual payment obligation when due;

(B)has commenced or had commenced against it insolvency, liquidation, reorganization, receivership (including the appointment of a receiver), conservatorship, or similar proceedings; or

(C)has generally ceased to meet its obligations when due.

(8)Failed member The term “failed member” means any member that—

(A)fails to satisfy a covered clearing obligation when due,

(B)has commenced or had commenced against it insolvency, liquidation, reorganization, receivership (including the appointment of a receiver), conservatorship, or similar proceedings, or

(C)has generally ceased to meet its obligations when due.

(9)Financial institution The term “financial institution” means a broker or dealer, a depository institution, a futures commission merchant, or any other institution as determined by the Board of Governors of the Federal Reserve System.

(10)Futures commission merchant The term “futures commission merchant” means a company that is registered or licensed under Federal law to engage in the business of selling futures and options in commodities.

(11)Member The term “member” means a member of or participant in a clearing organization, and includes the clearing organization and any other clearing organization with which such clearing organization has a netting contract.

(12)Net entitlement The term “net entitlement” means the amount by which the covered contractual payment entitlements of a financial institution or member exceed the covered contractual payment obligations of the institution or member after netting under a netting contract.

(13)Net obligation The term “net obligation” means the amount by which the covered contractual payment obligations of a financial institution or member exceed the covered contractual payment entitlements of the institution or member after netting under a netting contract.

(14)Netting contract

(A)In general The term “netting contract”—

(i)means a contract or agreement between 2 or more financial institutions, clearing organizations, or members that provides for netting present or future payment obligations or payment entitlements (including liquidation or close out values relating to such obligations or entitlements) among the parties to the agreement; and

(ii)includes the rules of a clearing organization.

(B)Invalid contracts not included The term “netting contract” does not include any contract or agreement that is invalid under or precluded by Federal law.

(15)Payment The term “payment” means a payment of United States dollars, another currency, or a composite currency, and a noncash delivery, including a payment or delivery to liquidate an unmatured obligation.

(Pub. L. 102–242, title IV, § 402, Dec. 19, 1991, 105 Stat. 2372; Pub. L. 102–550, title XVI, § 1606(a), Oct. 28, 1992, 106 Stat. 4087; Pub. L. 106–554, § 1(a)(5) [title I, §§ 112(a)(2), 123(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–391, 2763A–411; Pub. L. 109–8, title IX, § 906(a), Apr. 20, 2005, 119 Stat. 167.)

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