Statute: 1971 ACT AS AMENDED
Title: Title IV Provisions Applicable to Two or More Classes of Institutions of the System
Part: Part A Funding
U.S. Code Citation: 12 U.S.C. 2154a
12 U.S.C. 2154a SEC. 4.3A. CAPITALIZATION OF SYSTEM INSTITUTIONS.
(a) DEFINITIONS. As used in this section:
(1) PERMANENT CAPITAL. The term "permanent capital" means—
(A) current year retained earnings;
(B) allocated and unallocated earnings (which, in the case of earnings allocated in any form by a System bank to any association or other recipient and retained by the bank, shall be considered, in whole or in part, permanent capital of the bank or of any such association or other recipient as provided under an agreement between the bank and each such association or other recipient);
(C) all surplus (less allowances for losses);
(D) stock issued by a System institution, except—
(i) stock that may be retired by the holder of the stock on repayment of the holder's loan, or otherwise at the option or request of the holder; or
(ii) stock that is protected under section 4.9A or is otherwise not at risk; and
(E) any other debt or equity instruments or other accounts that the Farm Credit Administration determines appropriate to be considered permanent capital.
(2) STOCK. The term "stock" means voting and nonvoting stock (including preferred stock), equivalent contributions to a guaranty fund, participation certificates, allocated equities, and other forms and types of equities.
(b) ADOPTION OF BYLAWS. Subject to approval by shareholders under subsection (c)(2) of this section, each bank and association shall adopt bylaws, developed by its board of directors, that provide for the capitalization of the institution in accordance with subsection (c)(1) of this section.
(c) REQUIREMENTS OF BYLAWS.
(1) IN GENERAL. Notwithstanding any other provision of this Act, the bylaws adopted under subsection (b) of this section—
(A) shall provide for such classes, par value, and amounts of the stock of the institution, the manner in which such stock shall be issued, transferred, and retired, and the payment of dividends and patronage refunds, as determined appropriate by the Board of Directors, subject to this section;
(B) may provide for the charging of loan origination fees as determined appropriate by the Board of Directors;
(C) shall enable the institution to meet the capital adequacy standards established under the regulations issued under section 4.3(a);
(D) shall provide for the issuance of voting stock, which may only be held by—
(i) borrowers who are farmers, ranchers, or producers or harvesters of aquatic products, and cooperative associations eligible to borrow from System institutions under this Act;
(ii) persons and entities eligible to borrow from the banks for cooperatives, as described in section 3.3(c)(ii);
(iii) in the case of a Central Bank for Cooperatives, other banks for cooperatives; and
(iv) in the case of banks other than banks for cooperatives, System associations;
(E) shall require that—
(i) as a condition of borrowing from or through the institution, any borrower who is entitled to hold voting stock or participation certificates shall, at the time a loan is made, acquire voting stock or participation certificates in an amount not less than $1,000 or 2 percent of the amount of the loan, whichever is less; and
(ii) within 2 years after the loan of a borrower is repaid in full, any voting stock held by the borrower be converted to nonvoting stock;
(F) may provide that persons who are not borrowers from the institution may hold nonvoting stock of the institution;
(G) shall require that any holder of voting stock issued before the adoption of bylaws under this section exchange a portion of such stock for new voting stock;
(H) do not need to provide for maximum or minimum standards of borrower stock ownership based on a percentage of the loan of the borrower, except as otherwise provided in this section;
(I) shall permit the retirement of stock at the discretion of the institution if the institution meets the capital adequacy standards established under section 4.3(a); and
(J) shall permit stock to be transferable.
(2) EFFECTIVE DATE. The bylaws adopted by the board of directors of a System institution under subsection (b) of this section shall take effect only on approval of a majority of the stockholders of such institution present and voting, or voting by written proxy, at a duly authorized stockholder's meeting.
(d) REDUCTION OF CAPITAL.
(1) GENERAL RULE. Except as provided in paragraph (2), the board of directors of a System institution may not reduce the permanent capital of the institution through the payment of patronage refunds or dividends, or the retirement of stock if, after or due to such action, the permanent capital of the institution would thereafter fail to meet the minimum capital adequacy standards established under section 4.3(a).
(2) EXCEPTIONS. Paragraph (1) shall not apply to the payment of noncash patronage refunds by any institution exempt from Federal income tax if the entire refund paid qualifies as permanent capital. Notwithstanding paragraph (1), any System institution subject to Federal income tax may pay patronage refunds partially in cash as long as the cash portion of the refund is the minimum amount required to qualify the refund as a deductible patronage distribution for Federal income tax purposes and the remaining portion of the refund paid qualifies as permanent capital.
(e) COMPLIANCE. The Farm Credit Administration may issue a directive that requires compliance with subsection (d), to the board of directors of any System institution that fails to comply therewith.
(f) LOANS DESIGNATED FOR SALE OR SOLD INTO THE SECONDARY MARKET.
(1) IN GENERAL. Subject to paragraph (2) and notwithstanding any other provision of this section, the bylaws adopted by a bank or association under subsection (b) may provide—
(A) in the case of a loan made on or after the date of enactment of this paragraph that is designated, at the time the loan is made, for sale into a secondary market, that no voting stock or participation certificate purchase requirement shall apply to the borrower for the loan; and
(B) in the case of a loan made before the date of enactment of this paragraph that is sold into a secondary market, that all outstanding voting stock or participation certificates held by the borrower with respect to the loan shall, subject to subsection (d)(1), be retired.
(2) APPLICABILITY. Notwithstanding any other provision of this section, in the case of a loan sold to a secondary market under title VIII, paragraph (1) shall apply regardless of whether the bank or association retains a subordinated participation interest in a loan or pool of loans or contributes to a cash reserve.
(A) IN GENERAL. Subject to subparagraph (B) and notwithstanding any other provision of this section, if a loan designated for sale under paragraph (1)(A) is not sold into a secondary market during the 180-day period that begins on the date of the designation, the voting stock or participation certificate purchase requirement that would otherwise apply to the loan in the absence of a bylaw provision described in paragraph (1)(A) shall be effective.
(B) RETIREMENT. The bylaws adopted by a bank or association under subsection (b) may provide that if a loan described in subparagraph (A) is sold into a secondary market after the end of the 180-day period described in the subparagraph, all outstanding voting stock or participation certificates held by the borrower with respect to the loan shall, subject to subsection (d)(1), be retired.
(g) CONSTRUCTION. This section shall not be construed to affect the provisions of this Act that confer on System institutions a lien on borrower stock or other equities and the privilege to retire or cancel such stock or other equities for application against the indebtedness on a defaulted or restructured loan.
(h) CONTROLLING AUTHORITY. To the extent that any provision of this section is inconsistent with any other provision of this Act (other than section 4.9A), the provision of this section shall control.
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