12 USC 1831e – Activities of savings associations
(a) In general
On and after January 1, 1990, a savings association chartered under State law may not engage as principal in any type of activity, or in any activity in an amount, that is not permissible for a Federal savings association unless—
(1) the Corporation has determined that the activity would pose no significant risk to the Deposit Insurance Fund; and
(2) the savings association is and continues to be in compliance with the fully phased-in capital standards prescribed under section 1464(t) of this title.
(b) Differences of magnitude between State and Federal powers
Terms Used In 12 USC 1831e
- affiliate: has the meaning given to such term in section 1841(k) of this title. See 12 USC 1813
- Amortization: Paying off a loan by regular installments.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- association: when used in reference to a corporation, shall be deemed to embrace the words "successors and assigns of such company or association" in like manner as if these last-named words, or words of similar import, were expressed. See 1 USC 5
- bank holding company: has the meaning given to such term in section 1841 of this title. See 12 USC 1813
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- deposit: means &mdash. See 12 USC 1813
- Deposit Insurance Fund: means the Deposit Insurance Fund established under section 1821(a)(4) of this title. See 12 USC 1813
- depository institution: means any bank or savings association. See 12 USC 1813
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Federal savings association: means any Federal savings association or Federal savings bank which is chartered under section 1464 of this title. See 12 USC 1813
- insured depository institution: includes any uninsured branch or agency of a foreign bank or a commercial lending company owned or controlled by a foreign bank for purposes of section 1818 of this title. See 12 USC 1813
- Interest rate: The amount paid by a borrower to a lender in exchange for the use of the lender's money for a certain period of time. Interest is paid on loans or on debt instruments, such as notes or bonds, either at regular intervals or as part of a lump sum payment when the issue matures. Source: OCC
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- savings and loan holding company: has the meaning given to such term in section 1467a of this title. See 12 USC 1813
- savings association: means &mdash. See 12 USC 1813
- State: means any State of the United States, the District of Columbia, any territory of the United States, Puerto Rico, Guam, American Samoa, the Trust Territory of the Pacific Islands, the Virgin Islands, and the Northern Mariana Islands. See 12 USC 1813
- violation: includes any action (alone or with another or others) for or toward causing, bringing about, participating in, counseling, or aiding or abetting a violation. See 12 USC 1813
Notwithstanding subsection (a)(1), if an activity (other than an activity described in section 1464(c)(2)(B) of this title) is permissible for a Federal savings association, a savings association chartered under State law may engage as principal in that activity in an amount greater than the amount permissible for a Federal savings association if—
(1) the Corporation has not determined that engaging in that amount of the activity poses any significant risk to the Deposit Insurance Fund; and
(2) the savings association chartered under State law is and continues to be in compliance with the fully phased-in capital standards prescribed under section 1464(t) of this title.
(c) Equity investments by State savings associations
(1) In general
Notwithstanding subsections (a) and (b), a savings association chartered under State law may not directly acquire or retain any equity investment of a type or in an amount that is not permissible for a Federal savings association.
(2) Exception for service corporations
Paragraph (1) does not prohibit a savings association from acquiring or retaining shares of one or more service corporations if—
(A) the Corporation has determined that no significant risk to the Deposit Insurance Fund is posed by—
(i) the amount that the association proposes to acquire or retain; or
(ii) the activities in which the service corporation engages; and
(B) the savings association is and continues to be in compliance with the fully phased-in capital standards prescribed under section 1464(t) of this title.
(3) Transition rule
(A) In general
The Corporation shall require any savings association to divest any equity investment the retention of which is not permissible under paragraph (1) or (2) as quickly as can be prudently done, and in any event not later than July 1, 1994.
(B) Treatment of noncompliance during divestment
With respect to any equity investment held by any savings association on May 1, 1989, the savings association shall be deemed not to be in violation of the prohibition in paragraph (1) or (2) on retaining such investment so long as the savings association complies with any applicable requirement established by the Corporation pursuant to subparagraph (A) for divesting such investments.
(d) Corporate debt securities
(1) In general
No savings association may, directly or through a subsidiary, acquire or retain any corporate debt security that does not meet standards of credit-worthiness as established by the Corporation.
(2) Exception for securities held by qualified affiliate
Paragraph (1) shall not apply with respect to any corporate debt security which is acquired and retained by any qualified affiliate of a savings association.
(3) Definitions
For purposes of this section—
(A) Qualified affiliate
The term “qualified affiliate” means—
(i) in the case of a stock savings association, an affiliate other than a subsidiary or an insured depository institution; and
(ii) in the case of a mutual savings association, a subsidiary other than an insured depository institution, so long as all of the savings association’s investments in and extensions of credit to the subsidiary are deducted from the savings association’s capital.
(B) Certain securities not included
The term “corporate debt security that does not meet standards of credit-worthiness as established by the Corporation” does not include any obligation issued or guaranteed by a corporation that may be held by a Federal savings association without limitation as to percentage of assets under subparagraph (D), (E), or (F) of section 1464(c)(1) of this title.
(e) Transfer of corporate debt security in exchange for a qualified note
(1) Acquisition of note
Notwithstanding subsections (a), (b), and (c) of section 1464 1 of this title and any other provision of Federal or State law governing extensions of credit by savings associations, any insured savings association, and any subsidiary of any insured savings association, that, on August 9, 1989, holds any corporate debt security that does not meet standards of credit-worthiness as established by the Corporation may acquire a qualified note in exchange for the transfer of such security to—
(A) any holding company which controls 80 percent or more of the shares of such insured savings association; or
(B) any company other than an insured savings association, or any subsidiary of any insured savings association, 80 percent or more of the shares of which are controlled by such holding company,
if the conditions of paragraph (2) are met.
(2) Conditions for exchange of security for qualified note
The conditions of this paragraph are met if—
(A) the insured savings association was in compliance with applicable capital requirements on December 31, 1988, and the insured savings association after such date—
(i) remains in compliance with applicable capital requirements; or
(ii) adopts and complies with a capital plan acceptable to the Comptroller of the Currency or the Corporation, as appropriate;
(B) the company to which the corporate debt security that does not meet standards of credit-worthiness established by the Corporation is transferred is not a bank holding company, an insured savings association, or a direct or indirect subsidiary of such holding company or insured savings association;
(C) before the end of the 90-day period beginning on August 9, 1989, the insured savings association notifies the Comptroller of the Currency or the Corporation, as appropriate, of such association’s intention to transfer the corporate debt security that does not meet standards of credit-worthiness established by the Corporation to the savings and loan holding company or the subsidiary of such holding company;
(D) the transfer of the corporate debt security that does not meet standards of credit-worthiness established by the Corporation is completed—
(i) before the end of the 1-year period beginning on August 9, 1989, in the case of an insured savings association that, as of August 9, 1989, is controlled by a savings and loan holding company; or
(ii) before the end of the 2-year period beginning on August 9, 1989, in the case of a savings association that is not, as of August 9, 1989, a subsidiary of a savings and loan holding company;
(E) the insured savings association receives in exchange for the corporate debt security that does not meet standards of credit-worthiness established by the Corporation the fair market value of such security;
(F) the Comptroller of the Currency or the Corporation, as appropriate has—
(i) approved the transaction; and
(ii) determined that the transfer represents a complete and effective divestiture of the corporate debt security that does not meet standards of credit-worthiness established by the Corporation and is in compliance with the provisions of this subsection; and
(G) any gain on the sale of the corporate debt security that does not meet standards of credit-worthiness established by the Corporation is recognized, and included for applicable regulatory capital requirements, by the insured savings association only at such time and to the extent that the insured savings association receives payment of principal on the note in cash in excess of the fair market value of the transferred corporate debt security that does not meet standards of credit-worthiness established by the Corporation as carried on the accounts of the insured savings association immediately prior to the transfer.
(3) “Qualified note” defined
The term “qualified note” means any note that—
(A) is at all times fully secured by the corporate debt security that does not meet standards of credit-worthiness established by the Corporation transferred in exchange for the note, or by other collateral of at least equivalent value that is acceptable to the Comptroller of the Currency or the Corporation, as appropriate;
(B) contains provisions acceptable to the Comptroller of the Currency or the Corporation, as appropriate, that would—
(i) prevent any action to encumber or impair the value of the collateral referred to in subparagraph (A); and
(ii) allow the sale of the corporate debt security that does not meet standards of credit-worthiness established by the Corporation if the proceeds of the sale are reinvested in assets of equivalent value;
(C) is on market terms, including interest rate, which must in all cases be above the insured savings association’s borrowing rate for similar term funds;
(D) is fully repayable over a period of time not to exceed 5 years from the date of transfer;
(E) is repaid with annual principal payments at least as large as would be necessary to repay the note within 5 years if it were on a level payment amortization schedule and the interest rate for the first year of repayment were fixed throughout the amortization period;
(F) is fully guaranteed by each holding company of the insured savings association that acquires such note; and
(G) is repaid in full in cash in accordance with its terms and this subsection.
(4) Failure to repay on schedule
The exemption provided by this subsection from subsections (a), (b), and (c) of section 1468 of this title and any other applicable provision of Federal or State law shall terminate immediately if the insured savings association or any affiliate of such association fails to comply with the terms of the qualified note or this subsection.
(f) Determinations
The Corporation shall make determinations under this section by regulation or order.
(g) “Activity” defined
For purposes of subsections (a) and (b)—
(1) In general
The term “activity” includes acquiring or retaining any investment.
(2) Divestiture of certain assets
Notwithstanding paragraph (1), subsections (a) and (b) shall not be construed to require a savings association to divest itself of any assets acquired before August 9, 1989.
(h) Other authority not affected
This section may not be construed as limiting—
(1) any other authority of the Corporation; or
(2) any authority of the Comptroller of the Currency, of the Corporation, or of a State to impose more stringent restrictions.