§ 628.2 Definitions. Cross Reference
Link to an amendment published at 89 FR 25129 , Apr. 10, 2024.
As used in this part: *Additional tier 1 capital (AT1)* is defined in § 628.20(c).
*Adjusted allowances for credit losses (AACL)* means valuation allowances that have been established through a charge against earnings or retained earnings for expected credit losses on financial assets measured at amortized cost and a lessor's net investment in leases that have been established to reduce the amortized cost basis of the assets to amounts expected to be collected as determined in accordance with GAAP. For purposes of this part, adjusted allowances for credit losses includes allowances for expected credit losses on off-balance sheet credit exposures not accounted for as insurance as determined in accordance with GAAP. Adjusted allowances for credit losses excludes allowances created that reflect credit losses on purchased credit deteriorated assets and available-for-sale debt securities.
*Allocated equities* means stock or surplus representing a patronage payment to a member-borrower that a System institution has retained for the benefit of its membership.[1] Allocated equities include qualified allocated equities and nonqualified allocated equities. Allocated equities are redeemable at the System institution board's discretion. Allocated equities contain no voting rights and are generally subordinated to borrower stock in receivership, insolvency, liquidation, or similar proceeding.
*Bank holding company* means a bank holding company as defined in section 2 of the Bank Holding Company Act.
*Bank Holding Company Act* means the Bank Holding Company Act of 1956, as amended (12 U.S.C. 1841 *et seq.*).
*Bankruptcy remote* means, with respect to an entity or asset, that the entity or asset would be excluded from an insolvent entity's estate in receivership, insolvency, liquidation, or similar proceeding.
*Borrower stock* means the capital investment a borrower holds in a System institution in connection with a loan.
*Call Report* means reports of condition and performance, as described in subpart D of part 621 of this chapter.
*Carrying value* means, with respect to an asset, the value of the asset on the balance sheet of the System institution, determined in accordance with GAAP. For all assets other than available-for-sale debt securities or purchased credit deteriorated assets, the carrying value is not reduced by any associated credit loss allowance that is determined in accordance with GAAP.
*Central counterparty (CCP)* means a counterparty (for example, a clearinghouse) that facilitates trades between counterparties in one or more financial markets by either guaranteeing trades or novating contracts.
*CFTC* means the U.S. Commodity Futures Trading Commission.
*Clean-up call* means a contractual provision that permits an originating System institution or servicer to call securitization exposures before their stated maturity or call date.
*Cleared transaction* means an exposure associated with an outstanding derivative contract or repo-style transaction that a System institution or clearing member has entered into with a central counterparty (that is, a transaction that a central counterparty has accepted). ( 1 ) The following transactions are cleared transactions: ( i ) - ( ii ) [Reserved]
( iii ) A transaction between a clearing member client System institution and a clearing member where the clearing member acts as a financial intermediary on behalf of the clearing member client and enters into an offsetting transaction with a CCP, provided that the requirements set forth in § 628.3(a) are met; or
( iv ) A transaction between a clearing member client System institution and a CCP where a clearing member guarantees the performance of the clearing member client System institution to the CCP and the transaction meets the requirements of § 628.3(a)(2) and (3).
( 2 ) [Reserved]
*Clearing member* means a member of, or direct participant in, a CCP that is entitled to enter into transactions with the CCP.
*Clearing member client* means a party to a cleared transaction associated with a CCP in which a clearing member either acts as a financial intermediary with respect to the party or guarantees the performance of the party to the CCP.
*Collateral agreement* means a legal contract that specifies the time when, and circumstances under which, a counterparty is required to pledge collateral to a System institution for a single financial contract or for all financial contracts in a netting set and confers upon the System institution a perfected, first-priority security interest (notwithstanding the prior security interest of any custodial agent), or the legal equivalent thereof, in the collateral posted by the counterparty under the agreement. This security interest must provide the System institution with a right to close-out the financial positions and liquidate the collateral upon an event of default of, or failure to perform by, the counterparty under the collateral agreement. A contract would not satisfy this requirement if the System institution's exercise of rights under the agreement may be stayed or avoided: ( 1 ) Under applicable law in the relevant jurisdictions, other than: ( i ) In receivership, conservatorship, or resolution under the Federal Deposit Insurance Act, Title II of the Dodd-Frank Act, or under any similar insolvency law applicable to Government-sponsored enterprises (GSEs), or laws of foreign jurisdictions that are substantially similar to the U.S. laws referenced in this paragraph (1)(i) in order to facilitate the orderly resolution of the defaulting counterparty;
( ii ) Where the agreement is subject by its terms to, or incorporates, any of the laws referenced in paragraph (1)(i) of this definition; or
( 2 ) Other than to the extent necessary for the counterparty to comply with the requirements of part 47, subpart I of part 252, or part 382 of this title, as applicable.
*Commitment* means any legally binding arrangement that obligates a System institution to extend credit or to purchase assets.
*Commodity derivative contract* means a commodity-linked swap, purchased commodity-linked option, forward commodity-linked contract, or any other instrument linked to commodities that gives rise to similar counterparty credit risks.
*Commodity Exchange Act* means the Commodity Exchange Act of 1936 (7 U.S.C. 1 *et seq.*).
*Common cooperative equity issuance date* means the date in which the holding period for purchased stock (excluding statutory minimum borrower stock and third-party stock) and allocated equities start: ( 1 ) For allocated equities, the calendar quarter-ending in which: ( i ) The System institution's Board of Directors has passed a resolution declaring a patronage refund; and
( ii ) The System institution has completed the applicable accounting treatment by segregating the new allocated equities from its unallocated retained earnings.
( 2 ) For purchased stock (excluding statutory minimum borrower stock and third-party stock), the calendar quarter-ending in which the stock is acquired by the holder and recognized on the institution's balance sheet.
*Common cooperative equity or equities* means common equities in the form of member-borrower stock, participation certificates, and allocated equities issued or allocated by a System institution to its current and former members.
*Common equity tier 1 capital (CET1)* is defined in § 628.20(b).
*Company* means a corporation, partnership, limited liability company, depository institution, business trust, special purpose entity, System institution, association, or similar organization.
*Corporate exposure* means an exposure to a company that is not: ( 1 ) An exposure to a sovereign, the Bank for International Settlements, the European Central Bank, the European Commission, the International Monetary Fund, a multi-lateral development bank (MDB), a depository institution, a foreign bank, a credit union, or a public sector entity (PSE);
( 2 ) An exposure to a GSE;
( 3 ) A residential mortgage exposure;
( 4 ) - ( 6 ) [Reserved]
( 7 ) A cleared transaction;
( 8 ) [Reserved]
( 9 ) A securitization exposure;
( 10 ) An equity exposure; or
( 11 ) An unsettled transaction.
*Country risk classification (CRC)* with respect to a sovereign, means the most recent consensus CRC published by the Organization for Economic Cooperation and Development (OECD) as of December 31st of the prior calendar year that provides a view of the likelihood that the sovereign will service its external debt.
*Credit derivative* means a financial contract executed under standard industry credit derivative documentation that allows one party (the protection purchaser) to transfer the credit risk of one or more exposures (reference exposure(s)) to another party (the protection provider) for a certain period of time.
*Credit-enhancing interest-only strip (CEIO)* means an on-balance sheet asset that, in form or in substance: ( 1 ) Represents a contractual right to receive some or all of the interest and no more than a minimal amount of principal due on the underlying exposures of a securitization; and
( 2 ) Exposes the holder of the CEIO to credit risk directly or indirectly associated with the underlying exposures that exceeds a pro rata share of the holder's claim on the underlying exposures, whether through subordination provisions or other credit-enhancement techniques.
*Credit-enhancing representations and warranties* means representations and warranties that are made or assumed in connection with a transfer of underlying exposures (including loan servicing assets) and that obligate a System institution to protect another party from losses arising from the credit risk of the underlying exposures. Credit-enhancing representations and warranties include provisions to protect a party from losses resulting from the default or nonperformance of the counterparties of the underlying exposures or from an insufficiency in the value of the collateral backing the underlying exposures. Credit-enhancing representations and warranties do not include: ( 1 ) Early default clauses and similar warranties that permit the return of, or premium refund clauses covering, 1-4 family residential first mortgage loans that qualify for a 50-percent risk weight for a period not to exceed 120 days from the date of transfer. These warranties may cover only those loans that were originated within 1 year of the date of transfer;
( 2 ) Premium refund clauses that cover assets guaranteed, in whole or in part, by the U.S. Government, a U.S. Government agency or a Government-sponsored enterprise (GSE), provided the premium refund clauses are for a period not to exceed 120 days from the date of transfer; or
( 3 ) Warranties that permit the return of underlying exposures in instances of misrepresentation, fraud, or incomplete documentation.
*Credit risk mitigant* means collateral, a credit derivative, or a guarantee.
*Credit union* means an insured credit union as defined under the Federal Credit Union Act (12 U.S.C. 1752 *et seq.*).
*Current exposure* means, with respect to a netting set, the larger of 0 or the fair value of a transaction or portfolio of transactions within the netting set that would be lost upon default of the counterparty, assuming no recovery on the value of the transactions. Current exposure is also called replacement cost.
*Current exposure methodology* means the method of calculating the exposure amount for over-the-counter derivative contracts in § 628.34(a).
*Custodian* means a company that has legal custody of collateral provided to a CCP.
*Depository institution* means a depository institution as defined in section 3 of the Federal Deposit Insurance Act.
*Depository institution holding company* means a bank holding company or savings and loan holding company.
*Derivative contract* means a financial contract whose value is derived from the values of one or more underlying assets, reference rates, or indices of asset values or reference rates. Derivative contracts include interest rate derivative contracts, exchange rate derivative contracts, equity derivative contracts, commodity derivative contracts, credit derivative contracts, and any other instrument that poses similar counterparty credit risks. Derivative contracts also include unsettled securities, commodities, and foreign exchange transactions with a contractual settlement or delivery lag that is longer than the lesser of the market standard for the particular instrument or 5 business days.
*Dodd-Frank Act* means the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. 111-203, 124 Stat. 1376).
*Early amortization provision* means a provision in the documentation governing a securitization that, when triggered, causes investors in the securitization exposures to be repaid before the original stated maturity of the securitization exposures, unless the provision: ( 1 ) Is triggered solely by events not directly related to the performance of the underlying exposures or the originating System institution (such as material changes in tax laws or regulations); or
( 2 ) Leaves investors fully exposed to future draws by borrowers on the underlying exposures even after the provision is triggered.
*Effective notional* amount means, for an eligible guarantee or eligible credit derivative, the lesser of the contractual notional amount of the credit risk mitigant and the exposure amount of the hedged exposure, multiplied by the percentage coverage of the credit risk mitigant.
*Eligible clean-up call* means a clean-up call that: ( 1 ) Is exercisable solely at the discretion of the originating System institution or servicer;
( 2 ) Is not structured to avoid allocating losses to securitization exposures held by investors or otherwise structured to provide credit enhancement to the securitization; and
( 3 ) ( i ) For a traditional securitization, is only exercisable when 10 percent or less of the principal amount of the underlying exposures or securitization exposures (determined as of the inception of the securitization) is outstanding; or
( ii ) For a synthetic securitization, is only exercisable when 10 percent or less of the principal amount of the reference portfolio of underlying exposures (determined as of the inception of the securitization) is outstanding.
*Eligible credit derivative* means a credit derivative in the form of a credit default swap, nth-to-default swap, total return swap, or any other form of credit derivative approved by the FCA, provided that: ( 1 ) The contract meets the requirements of an eligible guarantee and has been confirmed by the protection purchaser and the protection provider;
( 2 ) Any assignment of the contract has been confirmed by all relevant parties;
( 3 ) If the credit derivative is a credit default swap or nth-to-default swap, the contract includes the following credit events: ( i ) Failure to pay any amount due under the terms of the reference exposure, subject to any applicable minimal payment threshold that is consistent with standard market practice and with a grace period that is closely in line with the grace period of the reference exposure; and
( ii ) Receivership, insolvency, liquidation, conservatorship or inability of the reference exposure issuer to pay its debts, or its failure or admission in writing of its inability generally to pay its debts as they become due, and similar events;
( 4 ) The terms and conditions dictating the manner in which the contract is to be settled are incorporated into the contract;
( 5 ) If the contract allows for cash settlement, the contract incorporates a robust valuation process to estimate loss reliably and specifies a reasonable period for obtaining post-credit event valuations of the reference exposure;
( 6 ) If the contract requires the protection purchaser to transfer an exposure to the protection provider at settlement, the terms of at least one of the exposures that is permitted to be transferred under the contract provide that any required consent to transfer may not be unreasonably withheld;
( 7 ) If the credit derivative is a credit default swap or nth-to-default swap, the contract clearly identifies the parties responsible for determining whether a credit event has occurred, specifies that this determination is not the sole responsibility of the protection provider, and gives the protection purchaser the right to notify the protection provider of the occurrence of a credit event; and
( 8 ) If the credit derivative is a total return swap and the System institution records net payments received on the swap as net income, the System institution records offsetting deterioration in the value of the hedged exposure (either through reductions in fair value or by an addition to reserves).
*Eligible guarantee* means a guarantee from an eligible guarantor that: ( 1 ) Is written;
( 2 ) Is either: ( i ) Unconditional; or
( ii ) A contingent obligation of the U.S. Government or its agencies, the enforceability of which is dependent upon some affirmative action on the part of the beneficiary of the guarantee or a third party (for example, meeting servicing requirements);
( 3 ) Covers all or a pro rata portion of all contractual payments of the obligated party on the reference exposure;
( 4 ) Gives the beneficiary a direct claim against the protection provider;
( 5 ) Is not unilaterally cancelable by the protection provider for reasons other than the breach of the contract by the beneficiary;
( 6 ) Except for a guarantee by a sovereign, is legally enforceable against the protection provider in a jurisdiction where the protection provider has sufficient assets against which a judgment may be attached and enforced;
( 7 ) Requires the protection provider to make payment to the beneficiary on the occurrence of a default (as defined in the guarantee) of the obligated party on the reference exposure in a timely manner without the beneficiary first having to take legal actions to pursue the obligor for payment; and
( 8 ) Does not increase the beneficiary's cost of credit protection on the guarantee in response to deterioration in the credit quality of the reference exposure.
*Eligible guarantor* means: ( 1 ) A sovereign, the Bank for International Settlements, the International Monetary Fund, the European Central Bank, the European Commission, a Federal Home Loan Bank, Federal Agricultural Mortgage Corporation (Farmer Mac), a multilateral development bank (MDB), a depository institution, a bank holding company, a savings and loan holding company, a credit union, a foreign bank, or a qualifying central counterparty; or
( 2 ) An entity (other than a special purpose entity): ( i ) That at the time the guarantee is issued or anytime thereafter, has issued and outstanding an unsecured debt security without credit enhancement that is investment grade;
( ii ) Whose creditworthiness is not positively correlated with the credit risk of the exposures for which it has provided guarantees; and
( iii ) That is not an insurance company engaged predominately in the business of providing credit protection (such as a monoline bond insurer or re-insurer).
*Eligible margin loan* means: ( 1 ) An extension of credit where: ( i ) The extension of credit is collateralized exclusively by liquid and readily marketable debt or equity securities, or gold;
( ii ) The collateral is marked-to-fair value daily, and the transaction is subject to daily margin maintenance requirements; and
( iii ) The extension of credit is conducted under an agreement that provides the System institution the right to accelerate and terminate the extension of credit and to liquidate or set-off collateral promptly upon an event of default, including upon an event of receivership, insolvency, liquidation, conservatorship, or similar proceeding, of the counterparty, provided that, in any such case: ( A ) Any exercise of rights under the agreement will not be stayed or avoided under applicable law in the relevant jurisdictions, other than: ( 1 ) In receivership, conservatorship, or resolution under the Federal Deposit Insurance Act, Title II of the Dodd-Frank Act, or under any similar insolvency law applicable to GSEs,[2] or laws of foreign jurisdictions that are substantially similar to the U.S. laws referenced in this paragraph (1)(iii)(A)( 1 ) in order to facilitate the orderly resolution of the defaulting counterparty; or
( 2 ) Where the agreement is subject by its terms to, or incorporates, any of the laws referenced in paragraph (1)(iii)(A)(*1*) of this definition; and
( B ) The agreement may limit the right to accelerate, terminate, and close-out on a net basis all transactions under the agreement and to liquidate or set-off collateral promptly upon an event of default of the counterparty to the extent necessary for the counterparty to comply with the requirements of part 47, subpart I of part 252, or part 382 of this title, as applicable.
( 2 ) In order to recognize an exposure as an eligible margin loan for purposes of this subpart, a System institution must comply with the requirements of § 628.3(b) with respect to that exposure.
*Eligible servicer cash advance facility* means a servicer cash advance facility in which: ( 1 ) The servicer is entitled to full reimbursement of advances, except that a servicer may be obligated to make non-reimbursable advances for a particular underlying exposure if any such advance is contractually limited to an insignificant amount of the outstanding principal balance of that exposure;
( 2 ) The servicer's right to reimbursement is senior in right of payment to all other claims on the cash flows from the underlying exposures of the securitization; and
( 3 ) The servicer has no legal obligation to, and does not make advances to the securitization if the servicer concludes the advances are unlikely to be repaid.
*Equity derivative contract* means an equity-linked swap, purchased equity-linked option, forward equity-linked contract, or any other instrument linked to equities that gives rise to similar counterparty credit risks.
*Equity exposure* means: ( 1 ) A security or instrument (whether voting or non-voting) that represents a direct or an indirect ownership interest in, and is a residual claim on, the assets and income of a company, unless: ( i ) The issuing company is consolidated with the System institution under GAAP;
( ii ) The System institution is required to deduct the ownership interest from tier 1 or tier 2 capital under this part;
( iii ) The ownership interest incorporates a payment or other similar obligation on the part of the issuing company (such as an obligation to make periodic payments); or
( iv ) The ownership interest is a securitization exposure;
( 2 ) A security or instrument that is mandatorily convertible into a security or instrument described in paragraph (1) of this definition;
( 3 ) An option or warrant that is exercisable for a security or instrument described in paragraph (1) of this definition; or
( 4 ) Any other security or instrument (other than a securitization exposure) to the extent the return on the security or instrument is based on the performance of a security or instrument described in paragraph (1) of this definition.
*ERISA* means the Employee Retirement Income and Security Act of 1974 (29 U.S.C. 1001 *et seq.*).
*Exchange rate derivative* contract means a cross-currency interest rate swap, forward foreign-exchange contract, currency option purchased, or any other instrument linked to exchange rates that gives rise to similar counterparty credit risks.
*Exposure* means an amount at risk.
*Exposure amount* means: ( 1 ) For the on-balance sheet component of an exposure (other than an available-for-sale or held-to-maturity security; an OTC derivative contract; a repo-style transaction or an eligible margin loan for which the System institution determines the exposure amount under § 628.37; a cleared transaction; or a securitization exposure), the System institution's carrying value of the exposure.
( 2 ) For a security (that is not a securitization exposure, equity exposure, or preferred stock classified as an equity security under GAAP) classified as available-for-sale or held-to-maturity, the System institution's carrying value (including net accrued but unpaid interest and fees) for the exposure less any net unrealized gains on the exposure and plus any net unrealized losses on the exposure.
( 3 ) For available-for-sale preferred stock classified as an equity security under GAAP, the System institution's carrying value of the exposure less any net unrealized gains on the exposure that are reflected in such carrying value but excluded from the System institution's regulatory capital components.
( 4 ) For the off-balance sheet component of an exposure (other than an OTC derivative contract; a repo-style transaction or an eligible margin loan for which the System institution calculates the exposure amount under § 628.37; a cleared transaction; or a securitization exposure), the notional amount of the off-balance sheet component multiplied by the appropriate credit conversion factor (CCF) in § 628.33.
( 5 ) For an exposure that is an OTC derivative contract, the exposure amount determined under § 628.34.
( 6 ) For an exposure that is a cleared transaction, the exposure amount determined under § 628.35.
( 7 ) For an exposure that is an eligible margin loan or repo-style transaction for which the bank calculates the exposure amount as provided in § 628.37, the exposure amount determined under § 628.37.
( 8 ) For an exposure that is a securitization exposure, the exposure amount determined under § 628.42.
*Farm Credit Act* means the Farm Credit Act of 1971, as amended (12 U.S.C. 2001 *et seq.*).
*Federal Deposit Insurance Act* means the Federal Deposit Insurance Act (12 U.S.C. 1813).
*Federal Deposit Insurance Corporation Improvement Act* means the Federal Deposit Insurance Corporation Improvement Act of 1991 (12 U.S.C. 4401).
*Financial collateral* means collateral: ( 1 ) In the form of: ( i ) Cash on deposit at a depository institution or Federal Reserve Bank (including cash held for the System institution by a third-party custodian or trustee);
( ii ) Gold bullion;
( iii ) Long-term debt securities that are not resecuritization exposures and that are investment grade;
( iv ) Short-term debt instruments that are not resecuritization exposures and that are investment grade;
( v ) Equity securities that are publicly traded;
( vi ) Convertible bonds that are publicly traded; or
( vii ) Money market fund shares and other mutual fund shares if a price for the shares is publicly quoted daily; and
( 2 ) In which the System institution has a perfected, first-priority security interest or, outside of the United States, the legal equivalent thereof (with the exception of cash on deposit at a depository institution or Federal Reserve Bank and notwithstanding the prior security interest of any custodial agent).
*First-lien residential mortgage exposure* means a residential mortgage exposure secured by a first lien.
*Foreign bank* means a foreign bank as defined in § 211.2 of the Federal Reserve Board's Regulation K (12 CFR 211.2) (other than a depository institution).
*Forward agreement* means a legally binding contractual obligation to purchase assets with certain drawdown at a specified future date, not including commitments to make residential mortgage loans or forward foreign exchange contracts.
*GAAP* means generally accepted accounting principles as used in the United States.
*Gain-on-sale* means an increase in the equity capital of a System institution (as reported on the Call Report) resulting from a traditional securitization (other than an increase in equity capital resulting from the System institution's receipt of cash in connection with the securitization or reporting of a mortgage servicing asset on the Call Report).
*General obligation* means a bond or similar obligation that is backed by the full faith and credit of a public sector entity (PSE).
*Government-sponsored enterprise (GSE)* means an entity established or chartered by the U.S. Government to serve public purposes specified by the U.S. Congress but whose debt obligations are not explicitly guaranteed by the full faith and credit of the U.S. Government.
*Guarantee* means a financial guarantee, letter of credit, insurance, or other similar financial instrument (other than a credit derivative) that allows one party (beneficiary) to transfer the credit risk of one or more specific exposures (reference exposure) to another party (protection provider).
*Home country* means the country where an entity is incorporated, chartered, or similarly established.
*Insurance company* means an insurance company as defined in section 201 of the Dodd-Frank Act (12 U.S.C. 5381).
*Insurance underwriting company* means an insurance company as defined in section 201 of the Dodd-Frank Act (12 U.S.C. 5381) that engages in insurance underwriting activities.
*Insured depository institution* means an insured depository institution as defined in section 3 of the Federal Deposit Insurance Act.
*Interest rate derivative contract* means a single-currency interest rate swap, basis swap, forward rate agreement, purchased interest rate option, when-issued securities, or any other instrument linked to interest rates that gives rise to similar counterparty credit risks.
*International Lending Supervision Act* means the International Lending Supervision Act of 1983 (12 U.S.C. 3907).
*Investment fund* means a company: ( 1 ) Where all or substantially all of the assets of the company are financial assets; and
( 2 ) That has no material liabilities.
*Investment grade* means that the entity to which the System institution is exposed through a loan or security, or the reference entity with respect to a credit derivative, has adequate capacity to meet financial commitments for the projected life of the asset or exposure. Such an entity or reference entity has adequate capacity to meet financial commitments if the risk of its default is low and the full and timely repayment of principal and interest is expected.
*Junior-lien residential mortgage exposure* means a residential mortgage exposure that is not a first-lien residential mortgage exposure.
*Member* means a borrower or former borrower from a System institution that holds voting or nonvoting cooperative equities of the institution.
*Money market fund* means an investment fund that is subject to 17 CFR 270.2a-7 or any foreign equivalent thereof.
*Mortgage servicing assets (MSAs)* means the contractual rights owned by a System institution to service for a fee mortgage loans that are owned by others.
*Multilateral development bank (MDB)* means the International Bank for Reconstruction and Development, the Multilateral Investment Guarantee Agency, the International Finance Corporation, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the European Bank for Reconstruction and Development, the European Investment Bank, the European Investment Fund, the Nordic Investment Bank, the Caribbean Development Bank, the Islamic Development Bank, the Council of Europe Development Bank, and any other multilateral lending institution or regional development bank in which the U.S. Government is a shareholder or contributing member or which the FCA determines poses comparable credit risk.
*National Bank Act* means the National Bank Act (12 U.S.C. 24).
*Netting set* means a group of transactions with a single counterparty that are subject to a qualifying master netting agreement or a qualifying cross-product master netting agreement. For purposes of calculating risk-based capital requirements using the internal models methodology in subpart E of this part, this term does not cover a transaction: ( 1 ) That is not subject to such a master netting agreement; or
( 2 ) Where the System institution has identified specific wrong-way risk.
*Nonqualified allocated equities* mean a patronage payment to a member-borrower in the form of stock or surplus that a System institution retains as equity for the benefit of the membership. A System institution does not deduct this patronage payment from its current taxable income according to the Internal Revenue Code sections 1382(b) and 1383. Nonqualified allocated equities also include allocated surplus in a tax-exempt institution or subsidiary. When a System institution revolves a nonqualified allocation, the System institution deducts the allocation from its taxable income, if any, and the borrower generally recognizes the tax liability, if any, as ordinary income. System institutions pay two types of nonqualified allocated equities through written notices of allocation to the borrowers: ( 1 ) Those subject to revolvement; and
( 2 ) Those not subject to revolvement. The second type for GAAP purposes is generally considered an equivalent of unallocated surplus and consolidated with unallocated surplus on externally prepared shareholder reports.
N *th* -*to-default credit derivative* means a credit derivative that provides credit protection only for the nth-defaulting reference exposure in a group of reference exposures.
*Operating entity* means a company established to conduct business with clients with the intention of earning a profit in its own right and that generally produces goods or provides services beyond the business of investing, reinvesting, holding, or trading in financial assets. All System banks, associations, and service corporations, and all unincorporated business entities, are operating entities.
*Original maturity* with respect to an off-balance sheet commitment means the length of time between the date a commitment is issued and: ( 1 ) For a commitment that is not subject to extension or renewal, the stated expiration date of the commitment; or
( 2 ) For a commitment that is subject to extension or renewal, the earliest date on which the System institution can, at its option, unconditionally cancel the commitment.
*Originating System institution,* with respect to a securitization, means a System institution that: ( 1 ) Directly or indirectly originated the underlying exposures included in the securitization; or
( 2 ) [Reserved]
*Other financing institution (OFI)* means any entity referred to in section 1.7(b)(1)(B) of the Farm Credit Act.
*Over-the-counter (OTC) derivative contract* means a derivative contract that is not a cleared transaction.
*Participation certificate* means borrower stock held by a borrower or customer of a System institution that does not have voting rights.
*Patronage payment* means a cash declaration or equity allocation to member-borrowers that pursuant to Internal Revenue Code section 1381(a) is based on a System institution's net income and allocated to borrowers based on business conducted with the institution. Patronage payments may be paid as cash, allocated equity (stock or surplus), or a combination of cash and allocated equity.
*Performance standby letter of credit (or performance bond)* means an irrevocable obligation of a System institution to pay a third-party beneficiary when a customer (account party) fails to perform on any contractual nonfinancial or commercial obligation. To the extent permitted by law or regulation, performance standby letters of credit include arrangements backing, among other things; subcontractors' and suppliers' performance, labor; and materials contracts, and construction bids.
*Protection amount (P)* means, with respect to an exposure hedged by an eligible guarantee or eligible credit derivative, the effective notional amount of the guarantee or credit derivative, reduced to reflect any currency mismatch, maturity mismatch, or lack of restructuring coverage (as provided in § 628.36).
*Publicly traded* means traded on: ( 1 ) Any exchange registered with the Securities and Exchange Commission (SEC) as a national securities exchange under section 6 of the Securities Exchange Act; or
( 2 ) Any non-U.S.-based securities exchange that: ( i ) Is registered with, or approved by, a national securities regulatory authority; and
( ii ) Provides a liquid, two-way market for the instrument in question.
*Public sector entity (PSE)* means a state, local authority, or other governmental subdivision below the sovereign level.
*Qualified allocated equities* means patronage allocated to a member-borrower, in the form of stock or surplus, that a System institution retains as equity for the benefit of the membership. A System institution can deduct this patronage from its current taxable income provided that the borrower has agreed to include the patronage in its taxable income. A System institution must pay at least 20 percent of a qualified patronage payment in cash to borrowers. A System institution must provide the borrowers with a qualified written notice of allocation when they allocate qualified patronage payments pursuant to Internal Revenue Code section 1381(b) and 1388(c). A System institution revolves qualified allocated equities according to a board-approved plan.
*Qualifying central counterparty (QCCP)* means a central counterparty that: ( 1 ) ( i ) Is a designated financial market utility (FMU), as defined in section 803 of the Dodd-Frank Act;
( ii ) If not located in the United States, is regulated and supervised in a manner equivalent to a designated FMU; or
( iii ) Meets the following standards: ( A ) The central counterparty requires all parties to contracts cleared by the counterparty to be fully collateralized on a daily basis;
( B ) The System institution demonstrates to the satisfaction of the FCA that the central counterparty: ( 1 ) Is in sound financial condition;
( 2 ) Is subject to supervision by the Board, the CFTC, or the Securities Exchange Commission (SEC), or, if the central counterparty is not located in the United States, is subject to effective oversight by a national supervisory authority in its home country; and
( 3 ) Meets or exceeds the risk-management standards for central counterparties set forth in regulations established by the Board, the CFTC, or the SEC under title VII or title VIII of the Dodd-Frank Act; or if the central counterparty is not located in the United States, meets or exceeds similar risk-management standards established under the law of its home country that are consistent with international standards for central counterparty risk management as established by the relevant standard setting body of the Bank of International Settlements; and
( 2 ) ( i ) Provides the System institution with the central counterparty's hypothetical capital requirement or the information necessary to calculate such hypothetical capital requirement, and other information the System institution is required to obtain under § 628.35(d)(3);
( ii ) Makes available to the FCA and the CCP's regulator the information described in paragraph (2)(i) of this definition; and
( iii ) Has not otherwise been determined by the FCA to not be a QCCP due to its financial condition, risk profile, failure to meet supervisory risk management standards, or other weaknesses or supervisory concerns that are inconsistent with the risk weight assigned to qualifying central counterparties under § 628.35.
( 3 ) A QCCP that fails to meet the requirements of a QCCP in the future may still be treated as a QCCP under the conditions specified in § 628.3(f).
*Qualifying master netting agreement* means a written, legally enforceable agreement provided that: ( 1 ) The agreement creates a single legal obligation for all individual transactions covered by the agreement upon an event of default following any stay permitted by paragraph (2) of this definition, including upon an event of receivership, conservatorship, insolvency, liquidation, or similar proceeding, of the counterparty;
( 2 ) The agreement provides the System institution the right to accelerate, terminate, and close-out on a net basis all transactions under the agreement and to liquidate or set-off collateral promptly upon an event of default, including upon an event of receivership, conservatorship, insolvency, liquidation, or similar proceeding, of the counterparty, provided that, in any such case: ( i ) Any exercise of rights under the agreement will not be stayed or avoided under applicable law in the relevant jurisdictions, other than: ( A ) In receivership, conservatorship, or resolution under the Federal Deposit Insurance Act, Title II of the Dodd-Frank Act, or under any similar insolvency law applicable to GSEs, or laws of foreign jurisdictions that are substantially similar to the U.S. laws referenced in this paragraph (2)(i)(A) in order to facilitate the orderly resolution of the defaulting counterparty; or
( B ) Where the agreement is subject by its terms to, or incorporates, any of the laws referenced in paragraph (2)(i)(A) of this definition; and
( ii ) The agreement may limit the right to accelerate, terminate, and close-out on a net basis all transactions under the agreement and to liquidate or set-off collateral promptly upon an event of default of the counterparty to the extent necessary for the counterparty to comply with the requirements of part 47, subpart I of part 252, or part 382 of this title, as applicable;
( 3 ) The agreement does not contain a walkaway clause (that is, a provision that permits a non-defaulting counterparty to make a lower payment than it otherwise would make under the agreement, or no payment at all, to a defaulter or the estate of a defaulter, even if the defaulter or the estate of the defaulter is a net creditor under the agreement); and
( 4 ) In order to recognize an agreement as a qualifying master netting agreement for purposes of this subpart, a System institution must comply with the requirements of § 628.3(d) with respect to that agreement.
*Repo-style transaction* means a repurchase or reverse repurchase transaction, or a securities borrowing or securities lending transaction, including a transaction in which the System institution acts as agent for a customer and indemnifies the customer against loss, provided that: ( 1 ) The transaction is based solely on liquid and readily marketable securities, cash, or gold;
( 2 ) The transaction is marked-to-fair value daily and subject to daily margin maintenance requirements;
( 3 ) ( i ) The transaction is a “securities contract” or “repurchase agreement” under section 555 or 559, respectively, of the Bankruptcy Code (11 U.S.C. 555 or 559), a qualified financial contract under section 11(e)(8) of the Federal Deposit Insurance Act, or a netting contract between or among financial institutions under sections 401-407 of the Federal Deposit Insurance Corporation Improvement Act or the Federal Reserve's Regulation EE (12 CFR part 231); or
( ii ) If the transaction does not meet the criteria set forth in paragraph (3)(i) of this definition, then either: ( A ) The transaction is executed under an agreement that provides the System institution the right to accelerate, terminate, and close-out the transaction on a net basis and to liquidate or set-off collateral promptly upon an event of default, including upon an event of receivership, insolvency, liquidation, or similar proceeding, of the counterparty, provided that, in any such case: ( 1 ) Any exercise of rights under the agreement will not be stayed or avoided under applicable law in the relevant jurisdictions, other than: ( i ) In receivership, conservatorship, or resolution under the Federal Deposit Insurance Act, Title II of the Dodd-Frank Act, or under any similar insolvency law applicable to GSEs, or laws of foreign jurisdictions that are substantially similar to the U.S. laws referenced in this paragraph (3)(ii)(A)( 1 )( i ) in order to facilitate the orderly resolution of the defaulting counterparty;
( ii ) Where the agreement is subject by its terms to, or incorporates, any of the laws referenced in paragraph (3)(ii)(A)(*1*)(*i*) of this definition; and
( 2 ) The agreement may limit the right to accelerate, terminate, and close-out on a net basis all transactions under the agreement and to liquidate or set-off collateral promptly upon an event of default of the counterparty to the extent necessary for the counterparty to comply with the requirements of part 47, subpart I of part 252, or part 382 of this title, as applicable; or
( B ) The transaction is: ( 1 ) Either overnight or unconditionally cancelable at any time by the System institution; and
( 2 ) Executed under an agreement that provides the System institution the right to accelerate, terminate, and close-out the transaction on a net basis and to liquidate or set-off collateral promptly upon an event of counterparty default; and
( 4 ) In order to recognize an exposure as a repo-style transaction for purposes of this subpart, a System institution must comply with the requirements of § 628.3(e) with respect to that exposure.
*Resecuritization* means a securitization which has more than one underlying exposure and in which one or more of the underlying exposures is a securitization exposure.
*Resecuritization exposure* means: ( 1 ) An on- or off-balance sheet exposure to a resecuritization; or
( 2 ) An exposure that directly or indirectly references a resecuritization exposure.
*Residential mortgage exposure* means an exposure (other than a securitization exposure or equity exposure) that is: ( 1 ) An exposure that is primarily secured by a first or subsequent lien on one-to-four family residential property, provided that the dwelling (including attached components such as garages, porches, and decks) represents at least 50 percent of the total appraised value of the collateral secured by the first or subsequent lien; or
( 2 ) [Reserved]
*Revenue obligation* means a bond or similar obligation that is an obligation of a PSE, but which the PSE is committed to repay with revenues from the specific project financed rather than general tax funds.
*Savings and loan holding company* means a savings and loan holding company as defined in section 10 of the Home Owners' Loan Act (12 U.S.C. 1467a).
*Securities and Exchange Commission (SEC)* means the U.S. Securities and Exchange Commission.
*Securities Exchange Act* means the Securities Exchange Act of 1934 (15 U.S.C. 78).
*Securitization exposure* means: ( 1 ) An on-balance sheet or off-balance sheet credit exposure (including credit-enhancing representations and warranties) that arises from a traditional securitization or synthetic securitization (including a resecuritization); or
( 2 ) An exposure that directly or indirectly references a securitization exposure described in paragraph (1) of this definition.
*Securitization special purpose entity (securitization SPE)* means a corporation, trust, or other entity organized for the specific purpose of holding underlying exposures of a securitization, the activities of which are limited to those appropriate to accomplish this purpose, and the structure of which is intended to isolate the underlying exposures held by the entity from the credit risk of the seller of the underlying exposures to the entity.
*Servicer cash advance facility* means a facility under which the servicer of the underlying exposures of a securitization may advance cash to ensure an uninterrupted flow of payments to investors in the securitization, including advances made to cover foreclosure costs or other expenses to facilitate the timely collection of the underlying exposures.
*Small Business Act* means the Small Business Act (15 U.S.C. 632).
*Small Business Investment Act* means the Small Business Investment Act of 1958 (15 U.S.C. 682).
*Sovereign* means a central government (including the U.S. Government) or an agency, department, ministry, or central bank of a central government.
*Sovereign default* means noncompliance by a sovereign with its external debt service obligations or the inability or unwillingness of a sovereign government to service an existing loan according to its original terms, as evidenced by failure to pay principal and interest timely and fully, arrearages, or restructuring.
*Sovereign exposure* means: ( 1 ) A direct exposure to a sovereign; or
( 2 ) An exposure directly and unconditionally backed by the full faith and credit of a sovereign.
*Standardized total risk-weighted assets* means: ( 1 ) The sum of: ( i ) Total risk-weighted assets for general credit risk as calculated under § 628.31;
( ii ) Total risk-weighted assets for cleared transactions as calculated under § 628.35;
( iii ) Total risk-weighted assets for unsettled transactions as calculated under § 628.38;
( iv ) Total risk-weighted assets for securitization exposures as calculated under § 628.42;
( v ) Total risk-weighted assets for equity exposures as calculated under §§ 628.52 and 628.53; minus
( vi ) [Reserved]
( 2 ) Any amount of the System institution's adjusted allowance for credit losses that is not included in tier 2 capital.
*Subsidiary* means, with respect to a company, a company controlled by that company.
*Synthetic exposure* means an exposure whose value is linked to the value of an investment in the System institution's own capital instrument.
*Synthetic securitization* means a transaction in which: ( 1 ) All or a portion of the credit risk of one or more underlying exposures is retained or transferred to one or more third parties through the use of one or more credit derivatives or guarantees (other than a guarantee that transfers only the credit risk of an individual retail exposure);
( 2 ) The credit risk associated with the underlying exposures has been separated into at least two tranches reflecting different levels of seniority;
( 3 ) Performance of the securitization exposures depends upon the performance of the underlying exposures; and
( 4 ) All or substantially all of the underlying exposures are financial exposures (such as loans, commitments, credit derivatives, guarantees, receivables, asset-backed securities, mortgage-backed securities, other debt securities, or equity securities).
*System bank* means a Farm Credit Bank, an agricultural credit bank, and a bank for cooperatives.
*System institution* means a System bank, an association of the Farm Credit System, and their successors, and any other institution chartered by the Farm Credit Administration (FCA) that the FCA determines should be considered a System institution for the purposes of this subpart.
*Tier 1 capital* means the sum of common equity tier 1 capital and additional tier 1 capital.
*Tier 2 capital* is defined in § 628.20(d).
*Total capital* means the sum of tier 1 capital and tier 2 capital.
*Traditional securitization* means a transaction in which: ( 1 ) All or a portion of the credit risk of one or more underlying exposures is transferred to one or more third parties other than through the use of credit derivatives or guarantees;
( 2 ) The credit risk associated with the underlying exposures has been separated into at least two tranches reflecting different levels of seniority;
( 3 ) Performance of the securitization exposures depends upon the performance of the underlying exposures;
( 4 ) All or substantially all of the underlying exposures are financial exposures (such as loans, commitments, credit derivatives, guarantees, receivables, asset-backed securities, mortgage-backed securities, other debt securities, or equity securities);
( 5 ) The underlying exposures are not owned by an operating entity;
( 6 ) The underlying exposures are not owned by a rural business investment company described in 7 U.S.C. 2009cc *et seq.;*
( 7 ) [Reserved]
( 8 ) The FCA may determine that a transaction in which the underlying exposures are owned by an investment firm that exercises substantially unfettered control over the size and composition of its assets, liabilities, and off-balance sheet exposures is not a traditional securitization based on the transaction's leverage, risk profile, or economic substance;
( 9 ) The FCA may deem a transaction that meets the definition of a traditional securitization, notwithstanding paragraph (5), (6), or (7) of this definition, to be a traditional securitization based on the transaction's leverage, risk profile, or economic substance; and
( 10 ) The transaction is not: ( i ) An investment fund;
( ii ) A collective investment fund (as defined in [12 CFR 9.18 (national bank) and 12 CFR 151.40 (Federal saving association) (OCC); 12 CFR 208.34 (Board)];
( iii ) An employee benefit plan (as defined in paragraphs (3) and (32) of section 3 of ERISA), a “governmental plan” (as defined in 29 U.S.C. 1002(32)) that complies with the tax deferral qualification requirements provided in the Internal Revenue Code, or any similar employee benefit plan established under the laws of a foreign jurisdiction;
( iv ) A synthetic exposure to the capital of a System institution to the extent deducted from capital under § 628.22; or
( v ) Registered with the SEC under the Investment Company Act of 1940 (15 U.S.C. 80a-1) or foreign equivalents thereof.
*Tranche* means all securitization exposures associated with a securitization that have the same seniority level.
*Two-way market* means a market where there are independent bona fide offers to buy and sell so that a price reasonably related to the last sales price or current bona fide competitive bid and offer quotations can be determined within 1 day and settled at that price within a relatively short timeframe conforming to trade custom.
*Unallocated retained earnings (URE)* means accumulated net income that a System institution has not allocated to a member-borrower.
*Unallocated retained earnings (URE) equivalents* means nonqualified allocated equities, other than equities allocated to other System institutions, and paid-in capital resulting from a merger of System institutions or from a repurchase of third-party capital that a System institution: ( 1 ) Designates as URE equivalents at the time of allocation (or on or before March 31, 2017, if allocated prior to January 1, 2017) and undertakes in its capitalization bylaws or a currently effective board of directors resolution not to change the designation without prior FCA approval; and
( 2 ) Undertakes, in its capitalization bylaws or a currently effective board of directors resolution, not to exercise its discretion to revolve except upon dissolution or liquidation and not to offset against a loan in default except as required under final order of a court of competent jurisdiction or if required under § 615.5290 of this chapter in connection with a restructuring under part 617 of this chapter.
*Unconditionally cancelable* means, with respect to a commitment that a System institution may, at any time, with or without cause, refuse to extend credit under the commitment (to the extent permitted under applicable law).
*Underlying exposures* means one or more exposures that have been securitized in a securitization transaction.
*U.S. Government agency* means an instrumentality of the U.S. Government whose obligations are fully guaranteed as to the timely payment of principal and interest by the full faith and credit of the U.S. Government.
[81 FR 49779, July 28, 2016, as amended at 86 FR 54357, Oct. 1, 2021; 87 FR 27493, May 9, 2022] Footnotes -
628.2
[1] System institutions as cooperatives are required to send borrowers a written notice of allocation specifying the amount of patronage payments retained as equity pursuant to the Internal Revenue Code section 1388.
[2] This requirement is met where all transactions under the agreement are (i) executed under U.S. law and (ii) constitute “securities contracts” under section 555 of the Bankruptcy Code (11 U.S.C. 555), qualified financial contracts under section 11(e)(8) of the Federal Deposit Insurance Act, or netting contracts between or among financial institutions under sections 401-407 of the Federal Deposit Insurance Corporation Improvement Act or the Federal Reserve Board's Regulation EE (12 CFR part 231).