(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.
1-385.21
(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.
1-385.22
(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.
1-385.23
(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.
1-385.24
(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.
1-385.25
(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.
1-385.26
(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.
1-385.27
(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.
1-385.28
(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.
1-385.29
(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).
1-385.3
(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.
1-385.31
(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.
1-385.32
(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.
1-385.33
(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.
1-385.34
(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.
1-385.35
(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).]
(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.
1-385.41
(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.
1-385.42
(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.
1-385.43
(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).]
