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1-385.1

SECTION 13—Corporation Monies

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(b) Banking and checking accounts. [See 1-273.]
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(f) FDIC-assisted emergency interstate acquisitions.
(1) This subsection shall apply only to an acquisition of an insured bank or a holding company by an out-of-State bank or out-of-State holding company for which the Corporation provides assistance under subsection (c).
(2) (A) Whenever an insured bank with total assets of $500,000,000 or more (as determined from its most recent report of condition) is closed, the Corporation, as receiver, may in its discretion and upon such terms and conditions as the Corporation may determine, arrange the sale of assets of the closed bank and the assumption of the liabilities of the closed bank, including the sale of such assets to and the assumption of such liabilities by an insured depository institution located in the State where the closed bank was chartered but established by an out-of-State bank or holding company. Where otherwise lawfully required, a transaction under this subsection must be approved by the primary Federal or State supervisor of all parties thereto.
(B) (i) Before making a determination to take any action under subparagraph (A), the Corporation shall consult the State bank supervisor of the State in which the insured bank in default was chartered.
(ii) The State bank supervisor shall be given a reasonable opportunity, and in no event less than forty-eight hours, to object to the use of the provisions of this paragraph. Such notice may be provided by the Corporation prior to its appointment as receiver, but in anticipation of an impending appointment.
(iii) If the State supervisor objects during such period, the Corporation may use the authority of this paragraph only by a unanimous vote of the Board of Directors. The Board of Directors shall provide to the State supervisor, as soon as practicable, a written certification of its determination.
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(3) (A) One or more out-of-State banks or out-of-State holding companies may acquire and retain all or part of the shares or assets of, or otherwise acquire and retain—
(i) an insured bank in danger of closing which has total assets of $500,000,000 or more; or 
(ii) 2 or more affiliated insured banks in danger of closing which have aggregate total assets of $500,000,000 or more, if the aggregate total assets of such banks is equal to or greater than 33 percent of the aggregate total assets of all affiliated insured banks.
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(B) If one or more out-of-State banks or out-of-State holding companies acquire 1 or more affiliated insured banks under subparagraph (A) the aggregate total assets of which is equal to or greater than 33 percent of the aggregate total assets of all affiliated insured banks, any such out-of-State bank or out-of-State holding company may also, as part of the same transaction, acquire and retain the shares or assets of, or otherwise acquire and retain—
(i) the holding company which controls the affiliated insured banks so acquired; or
(ii) any other affiliated insured bank.
(C) The Corporation may assist an acquisition or merger authorized under subparagraph (A) only if the board of directors or trustees of each insured bank in danger of closing which is being acquired has requested in writing that the Corporation assist the acquisition or merger.
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(D) Notwithstanding paragraph (1), if—
(i) at any time after the date of the enactment of the Financial Institutions Emergency Acquisitions Amendments of 1987, the Corporation provides any assistance under subsection (c) to an insured bank; and
(ii) at the time such assistance is granted, the insured bank, the holding company which controls the insured bank (if any), or any affiliated insured bank is eligible to be acquired by an out-of-State bank or out-of-State holding company under this paragraph,
the insured bank, the holding company, and such other affiliated insured bank shall remain eligible, subject to such terms and conditions as the Corporation (in the Corporation’s discretion) may impose, to be acquired by an out-of-State bank or out-of-State holding company under this paragraph as long as any portion of such assistance remains outstanding.
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(E) The Corporation may take no final action in connection with any acquisition under this paragraph unless the State bank supervisor of the State in which the bank in danger of closing is located approves the acquisition.
(F) This paragraph does not affect any other requirement under Federal or State law for regulatory approval of an acquisition under this paragraph.
(G) Any acquisition described in subparagraph (D) may be conditioned on the receipt of such consideration for the Corporation’s assistance as the Board of Directors deems appropriate.
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(4) (A) Section 3(d) of the Bank Holding Company Act of 1956, any provision of State law, the constitution of any State, and section 408(e)(3) of the National Housing Act shall not apply to prohibit any acquisition under paragraph (2) or (3), except that an out-of-State bank may make such an acquisition only if such ownership is otherwise specifically authorized.
(B) Any subsidiary created by operation of this subsection may retain and operate any existing branch or branches of the institution merged with or acquired under paragraph (2) or (3), but otherwise shall be subject to the conditions upon which a national bank may establish and operate branches in the State in which such insured institution is located.
(C) No insured institution acquired under this subsection shall after it is acquired move its principal office or any branch office which it would be prohibited from moving if the institution were a national bank.
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(D) (i) Any out-of-State bank holding company which acquires control of an insured bank in any State under paragraph (2) or (3) may acquire any other insured bank and established branches in such State to the same extent as a bank holding company whose insured bank subsidiaries’ operations are principally conducted in such State may acquire any other insured bank or establish branches.
(ii) Clause (i) shall not apply with respect to any out-of-State bank holding company referred to in such clause before the earlier of—
(I) the end of the 2-year period beginning on the date the acquisition referred to in such clause with respect to such company is consummated; or
(II) the end of any period established under State law during which such out-of-State bank holding company may not be treated as a bank holding company whose insured bank subsidiaries’ operations are principally conducted in such State for purposes of acquiring other insured banks or establishing bank branches.
(iii) For purposes of this subparagraph, the State in which the operations of a holding company’s insured bank subsidiaries are principally conducted is the State determined under section 3(d) of the Bank Holding Company Act of 1956 with respect to such holding company.
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(E) Any holding company which acquires control of any insured bank or holding company under paragraph (2) or (3) or subparagraph (D) of this paragraph shall not, by reason of such acquisition, be required under the law of any State to divest any other insured bank or be prevented from acquiring any other bank or holding company.
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(5) In determining whether to arrange a sale of assets and assumption of liabilities or an acquisition or a merger under the authority of paragraph (2) or (3), the Corporation may solicit such offers or proposals as are practicable from any prospective purchasers or merger partners it determines, in its sole discretion, are both qualified and capable of acquiring the assets and liabilities of the closed bank or the bank in danger of closing.
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(6) (A) If, after receiving offers, the offer presenting the lowest expense to the Corporation, that is in a form and with conditions acceptable to the Corporation (hereinafter referred to as the “lowest acceptable offer”), is from an offeror that is not an existing in-State bank of the same type as the bank that is in default or is in danger of default (or, where the bank is an insured bank other than a mutual savings bank, the lowest acceptable offer is not from an in-State holding company), the Corporation shall permit each offeror who made an offer the estimated cost of which to the Corporation was within 15 percentum or $15,000,000, whichever is less, of the initial lowest acceptable offer to submit a new offer.
(B) In considering authorizations under this subsection, the Corporation shall give consideration to the need to minimize the cost of financial assistance and to the maintenance of specialized depository institutions. The Corporation shall authorize transactions under this subsection considering the following priorities:
(i) First, between depository institutions of the same type within the same State.
(ii) Second, between depository institutions of the same type—
(I) in different States which by statute specifically authorize such acquisitions; or
(II) in the absence of such statutes, in different States which are contiguous.
(iii) Third, between depository institutions of the same type in different States other than the States described in clause (ii).
(iv) Fourth, between depository institutions of different types in the same State.
(v) Fifth, between depository institutions of different types—
(I) in different States which by statute specifically authorize such acquisitions; or
(II) in the absence of such statutes, in different States which are contiguous.
(vi) Sixth, between depository institutions of different types in different States other than the States described in clause (v).
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(C) In the case of a minority-controlled bank, the Corporation shall seek an offer from other minority-controlled banks before proceeding with the bidding priorities set forth in subparagraph (B).
(D) In considering offers from different States, the Corporation shall give a priority to offers from adjoining States.
(E) In determining the cost of offers and reoffers, the Corporation’s calculations and estimations shall be determinative. The Corporation may set reasonable time limits on offers and reoffers.
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(7) No sale may be made under the provisions of paragraph (2) or (3)
(A) which would result in a monopoly, or which would be in furtherance of any combination or conspiracy to monopolize or to attempt to monopolize the business of banking in any part of the United States;
(B) whose effect in any section of the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be in restraint of trade, unless the Corporation finds that the anticompetitive effects of the proposed transactions are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served; or
(C) if in the opinion of the Corporation the acquisition threatens the safety and soundness of the acquirer or does not result in the future viability of the resulting depository institution.
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(8) As used in this subsection—
(A) the term “receiver” means the Corporation when it has been appointed the receiver of a closed insured bank;
(B) the term “insured depository institution” means an insured bank or an association or savings bank insured by the Federal Savings and Loan Insurance Corporation;
(C) the term “in-State depository institution or in-State holding company” means an existing insured depository institution currently operating in the State in which the closed bank or the bank in danger of closing is chartered or a company that is operating an insured depository institution subsidiary in the State in which the closed bank or the bank in danger of closing is chartered;
(D) the term “bank in danger of closing” means an insured bank with respect to which the approriate Federal or State chartering authority certifies in writing that—
(i)
(I) the bank is not likely to be able to meet the demands of such bank’s depositors or pay the obligations of the bank in the normal course of business, and
(II) there is no reasonable prospect that the bank will be able to meet such demands or pay such obligations without Federal assistance; or
(ii)
(I) the bank has incurred or is likely to incur losses that will deplete all or substantially all of the capital of the bank, and
(II) there is no reasonable prospect for the replenishment of the bank’s capital without Federal assistance;
(E) the term “acquire” means to acquire, directly or indirectly, ownership or control through—
(i) an acquisition of shares;
(ii) an acquisition of assets or assumption of liabilities;
(iii) a merger or consolidation; or
(iv) any similar transaction;
(F) the term “affiliated insured bank” means—
(i) when used in connection with a reference to a holding company, an insured bank which is a subsidiary of such holding company; and
(ii) when used in connection with a reference to 2 or more insured banks, insured banks which are subsidiaries of the same holding company; and
(G) the term “subsidiary” has the meaning given to such term in section 2(d) of the Bank Holding Company Act of 1956.
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(9) (A) The Corporation shall not provide any assistance to a subsidiary of a holding company which is not an insured bank in connection with any acquisition under this subsection.
(B) This paragraph does not prohibit an intermediate holding company from being a conduit for assistance ultimately intended for an insured bank.
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(10) (A) In its annual report to Congress the Corporation shall include a report on the acquisitions under this subsection during the preceding year.
(B) The report required under subparagraph (A) shall contain the following information:
(i) The number of acquisitions under this subsection.
(ii) A brief description of each such acquisition and the circumstances under which such acquisition occurred.
(11) For purposes of this subsection, the total assets of any insured bank shall be determined on the basis of the most recent report of condition of such bank which is available at the time of such determination.
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(12) (A) For the purpose of ensuring continued minority control of a minority-controlled bank, paragraphs (2) and (3) shall apply with respect to the acquisition of a minority-controlled bank by an out-of-State minority-controlled depository institution or depository institution holding company without regard to the fact that the total assets of such minority-controlled bank is less than $500,000,000.
(B) For purposes of this paragraph:
(i) The term “minority bank” means any depository institution described in clause (i), (ii), or (iii) of section 461(b)(1)(A) of this title—
(I) more than 50 percent of the ownership or control of which is held by one or more minority individuals; and
(II) more than 50 percent of the net profit or loss of which accrues to minority individuals.
(ii) The term “minority” means any Black American, Native American, Hispanic American, or Asian American.
[12 USC 1823(f). As amended by acts of Oct. 15, 1982 (96 Stat. 1474, 1476, 1489); Jan. 12, 1983 (96 Stat. 2507); Aug. 10, 1987 (101 Stat. 623, 629, 635); and Sept. 23, 1994 (108 Stat. 2290).]
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1-385.4
(j) Loan loss amortization for agricultural banks.
(1) The appropriate Federal banking agency shall permit an agricultural bank to take the actions referred to in paragraph (2) if it finds that—
(A) there is no evidence that fraud or criminal abuse on the part of the bank led to the losses referred to in paragraph (2); and
(B) the agricultural bank has a plan to restore its capital, not later than the close of the amortization period established under paragraph (2), to a level prescribed by the appropriate Federal banking agency.
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(2) (A) Any loss on any qualified agricultural loan that an agricultural bank would otherwise be required to show on its annual financial statement for any year between December 31, 1983, and January 1, 1992, may be amortized on its financial statements over a period of not to exceed 7 years, as provided in regulations issued by the appropriate Federal banking agency.
(B) An agricultural bank may reappraise any real estate or other property, real or personal, that it acquired coincident to the making of a qualified agricultural loan and that it owned on January 1, 1983, and any such additional property that it acquires prior to January 1, 1992. Any loss that such bank would otherwise be required to show on its annual financial statements as the result of any such reappraisal may be amortized on its financial statements over a period of not to exceed 7 years, as provided in regulations issued by the appropriate Federal banking agency.
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(3) Not later than 90 days after the date of enactment of this subsection, the appropriate Federal banking agency shall issue regulations implementing this subsection with respect to banks that it supervises, including regulations implementing the capital restoration requirement of paragraph (1)(B).
(4) As used in this subsection—
(A) the term “agricultural bank” means a bank—
(i) the deposits of which are insured by the Federal Deposit Insurance Corporation;
(ii) which is located in an area the economy of which is dependent on agriculture;
(iii) which has assets of $100,000,000 or less; and
(iv) which has—
(I) at least 25 percent of its total loans in qualified agricultural loans; or
(II) fewer than 25 percent of its total loans in qualified agricultural loans but which the appropriate Federal banking agency or State bank commissioner recommends to the Corporation for eligibility under this section, or which the Corporation, on its motion, deems eligible; and
(B) the term “qualified agricultural loan” means a loan made to finance the production of agricultural products or livestock in the United States, a loan secured by farmland or farm machinery, or such other category of loans as the appropriate Federal banking agency may deem eligible.
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(5) As a condition of eligibility under this subsection, the agricultural bank must agree to maintain in its loan portfolio a percentage of agricultural loans which is not lower than the percentage of such loans in its loan portfolio on January 1, 1986.
[12 USC 1823(j). As added by act of Aug. 10, 1987 (101 Stat. 656).]

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