12 U.S.C. § 2154a | 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)

section 2162 of this title stock that is protected under 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), 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).

(c)

Requirements of bylaws

(1)

In general

Notwithstanding any other provision of this chapter, the bylaws adopted under subsection (b)—

(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)

section 2154(a) of this title shall enable the institution to meet the capital adequacy standards established under the regulations issued under ;

(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 chapter;

(ii)

section 2124(c)(ii) of this title persons and entities eligible to borrow from the banks for cooperatives, as described in ;

(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)

section 2154(a) of this title shall permit the retirement of stock at the discretion of the institution if the institution meets the capital adequacy standards established under ; 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) 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 stockholders’ meeting.

(d)

Reduction of capital

(1)

General rule

section 2154(a) of this titleExcept 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 .

(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 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)

February 10, 1996 in the case of a loan made on or after , 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)

February 10, 1996 in the case of a loan made before , 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 subchapter 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.

(3)

Exception

(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 chapter 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

section 2162 of this titleTo the extent that any provision of this section is inconsistent with any other provision of this chapter (other than ), the provision of this section shall control.

Pub. L. 92–181, title IV, § 4 Pub. L. 100–233, title III, § 301(b)Jan. 6, 1988101 Stat. 1608 Pub. L. 100–399, title III, § 301(b)Aug. 17, 1988102 Stat. 994 Pub. L. 102–552, title I, § 101Oct. 28, 1992106 Stat. 4103 Pub. L. 104–105, title II, § 206Feb. 10, 1996110 Stat. 173 Pub. L. 110–234, title V, § 5403(b)May 22, 2008122 Stat. 1154 Pub. L. 110–246, § 4(a)June 18, 2008122 Stat. 1664 (.3A, as added , , ; amended –(f), , ; , , ; , , ; , , ; , title V, § 5403(b), , , 1916.)

Editorial Notes

Codification

Pub. L. 110–234 Pub. L. 110–246 Pub. L. 110–234 section 4(a) of Pub. L. 110–246 and made identical amendments to this section. The amendments by were repealed by .

Amendments

Pub. L. 110–246, § 5403(b)2008—Subsec. (c)(1)(D)(ii) to (iv). , added cl. (ii) and redesignated former cls. (ii) and (iii) as (iii) and (iv), respectively.

Pub. L. 104–1051996—Subsecs. (f) to (h). added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively.

Pub. L. 102–5521992—Subsec. (a)(1). amended par. (1) generally. Prior to amendment, par. (1) read as follows: “The term ‘permanent capital’ means current year retained earnings, allocated and unallocated earnings, all surplus (less allowances for losses), and stock issued by a System institution, except stock that—

“(A) may be retired by the holder thereof on repayment of the holder’s loan, or otherwise at the option or request of the holder; or

section 2162 of this title“(B) is protected under or is otherwise not at risk.”

Pub. L. 100–399, § 301(b)section 2162 of this title1988—Subsec. (a)(1)(B). , substituted “” for “section 4.9B”.

Pub. L. 100–399, § 301(c)(1)Subsec. (c)(1)(D)(i). , substituted “producers or” for “producers, or”.

Pub. L. 100–399, § 301(c)(2)Subsec. (c)(1)(G). , substituted “voting stock issued” for “stock issued”.

Pub. L. 100–399, § 301(d)Subsec. (c)(1)(H). , inserted “, except as otherwise provided in this section” after “the borrower”.

Pub. L. 100–399, § 301(e)Subsec. (c)(1)(I). , struck out “standards issued under” after “established under”.

Pub. L. 100–399, § 301(f)section 2162 of this titleSubsec. (d)(1). , struck out “and in ” after “paragraph (2)” and “or allocated equities” after “retirement of stock”.

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Pub. L. 110–234 Pub. L. 110–246May 22, 2008Pub. L. 110–234 section 4 of Pub. L. 110–246 section 8701 of Title 7Amendment of this section and repeal of by effective , the date of enactment of , see , set out as an Effective Date note under , Agriculture.

Effective Date of 1988 Amendment

Pub. L. 100–399 Pub. L. 100–233Jan. 6, 1988section 1001(a) of Pub. L. 100–399 section 2002 of this titleAmendment by effective as if enacted immediately after enactment of , which was approved , see , set out as a note under .