Page:United States Statutes at Large Volume 54 Part 1.djvu/854

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PUBLIC LAWS-CH. 686-AUG. 22, 1940 Issuance or sale of senior securities by open-end companies. Provisos. Asset coverage of borrowings. Exclusion of certain preferred, etc. , stock. Pro/iso. Outstanding classes of stock. "Senior security" and "senior security representing indebt- edness" defined Exclusions. Temporary loans. "Asset coverage." effect of increasing the ratio of senior securities representing indebtedness to the securities representing stock or the ratio of senior securities representing stock to securities junior thereto when compared with such ratios as they existed before such reorganization. (f) (1) It shall be unlawful for any registered open-end com- pany to issue any class of senior security or to sell any senior security of which it is the issuer, except that any such registered com- pany shall be permitted to borrow from any bank: Provided, That immediately after any such borrowing there is an asset coverage of at least 300 per centum for all borrowings of such registered com- pany: And provided further, That in the event that such asset coverage shall at any time fall below 300 per centum such registered company shall, within three days thereafter (not including Sundays and holidays) or such longer period as the Commission may pre- scribe by rules and regulations, reduce the amount of its borrowings to an extent that the asset coverage of such borrowings shall be at least 300 per centum. (2) "Senior security" shall not, in the case of a registered open- end company include a class or classes or a number of series of preferred or special stock each of which is preferred over all other classes or series in respect of assets specifically allocated to that class or series: Provided, (A) That such company has outstanding no class or series of stock which is not so preferred over all other classes or series; or (B) that the only other outstanding class of the issuer's stock consists of a common stock upon which no dividend (other than a liquidating dividend) is permitted to be paid and which in the aggregate represents not more than one-half of 1 per centum of the issuer s outstanding voting securities. (g) Unless otherwise provided: "Senior security" means any bond, debenture, note, or similar obligation or instrument constitut- ing a security and evidencing indebtedness, and any stock of a class having priority over any other class as to distribution of assets or payment of dividends; and "senior security representing indebted- ness" means any senior security other than stock. The term "senior security", when used in subparagraphs (B) and (C) of paragraph (1) of subsection (a), shall not include any promissory note or other evidence of indebtedness issued in con- sideration of any loan, extension or renewal thereof, made by a bank or other person and privately arranged, and not intended to be publicly distributed; nor shall such term, when used in this section 18, include any such promissory note or other evidence of indebtedness in any case where such a loan is for temporary pur- poses only and in an amount not exceeding 5 per centum of the value of the total assets of the issuer at the time when the loan is made. A loan shall be presumed to be for temporary purposes if it is repaid within sixty days and is not extended or renewed; otherwise it shall be presumed not to be for temporary purposes. Any such presumption may be rebutted by evidence. (h) "Asset coverage" of a class of senior security representing an indebtedness of an issuer means the ratio which the value of the total assets of such issuer, less all liabilities and indebtedness not repre- sented by senior securities, bears to the aggregate amount of senior securities representing indebtedness of such issuer. "Asset coverage" of a class of senior security of an issuer which is a stock means the ratio which the value of the total assets of such issuer, less all liabilities and indebtedness not represented by senior securities, bears to the aggre- gate amount of senior securities representing indebtedness of such issuer plus the aggregate of the involuntary liquidation preference of 820 [54 STAT.