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(1) In the context of this rule, the following definitions apply:

(a) "Person" means an individual; a corporation; a government, governmental subdivision or agency; a business trust; an estate; a trust; a partnership or association; a limited liability company; two or more persons having a joint or common interest; or any other legal or commercial entity.

(b) "Commitment to lend or extend credit" includes, but is not limited to:

(i) undisbursed portions of operating, construction or other lines of credit, up to limits established by a written agreement between the lender and the borrower;

(ii) undisbursed portions of credit lines established to cover overdrafts;

(iii) undisbursed portions of credit card plans;

(iv) standby letters of credit.

(c) "Common enterprise" occurs when two or more persons combine to acquire, operate or control a business enterprise or property interest. Credit to a common enterprise includes:

(i) loans or extensions of credit to two or more persons when:

(A) loans or extensions of credit are used for a common purpose; and

(B) the expected source of repayment for each loan or extension of credit is the same for two or more of the persons, and those persons lack another source of income from which the loans or extensions of credit, together with the person's other liabilities, may be fully repaid.

(ii) loans or extensions of credit made:

(A) to persons who are related directly or indirectly through common control, including where one person is directly or indirectly controlled by another person; and

(B) substantial financial interdependence exists between or among the persons. Substantial financial interdependence is deemed to exist when 50% or more of one person's gross receipts or gross expenditures, on an annual basis, are derived from transactions with the other person.

(d) "Control" means the following:

(i) the ownership, control or ability to vote 25% or more of a corporation's outstanding voting stock.

(ii) the ability to control, in any manner, the election of a majority of a corporation's directors;

(iii) the power to exercise a controlling influence over the management or policies of a corporation.

(e) The proceeds of a loan or extension of credit to a person will be deemed to be used for the "direct benefit" of another person and the amount of the loan will be attributed to the other person when the proceeds, or assets purchased with the proceeds, are transferred to the other person. For the purpose of this definition, when the proceeds are used to acquire property, goods or services through a bona fide arm's length transaction, a direct benefit will not have occurred with regard to the seller of the property, goods or services.

(i) "Bona fide arm's length transaction" means an actual transaction, performed in good faith, between two or more parties, with each party acting in his or her own self-interest.

(f) "Loan or extension of credit" includes, but is not limited to:

(i) direct loans, whether on the bank's books or charged off the bank's books, subject to the exclusions in (3) (a) below,

(ii) loans, extensions of credit, or participation in loans or extensions of credit sold with recourse to or guaranteed by the bank,

(iii) letters of credit, other than standby letters of credit,

(iv) overdrafts, excluding intra-day overdrafts for which the bank receives payment prior to its close of business.

(2) For lending limit purposes, loans or extensions of credit will be combined as follows:

(a) Loans or extensions of credit to a person will be combined with loans or extensions of credit to one or more other persons when:

(i) proceeds of a loan or extension of credit are to be used for the direct benefit of the other person, or

(ii) a common enterprise is deemed to exist between the persons, to the extent that loan proceeds are used for the benefit of the common enterprise and repayment is dependent upon the common enterprise.

(b) A loan or extension of credit guaranteed by a person shall be aggregated with the person's other loans and extensions of credit only to the extent that the person receives direct benefit from the loan.

(c) If no direct benefit is received or no common enterprise exists, the combined loans or extensions of credit to a commonly owned or controlled group of borrowers shall not exceed three times the bank's lending limit.

(3) The following items will not be included when calculating the amount of a person's total loans and extensions of credit:

(a) Loans or extensions of credit, and participation in loans and extensions of credit that have been sold, provided:

(i) The loan, extension of credit or the portion of the loan or extension of credit sold as a participation is sold without recourse to the selling bank, and

(ii) In the case of participation, the participation agreement provides for a pro rata sharing of credit risk proportionate to the respective interests of the originating and participating lenders.

(A) Where a participation agreement provides that repayment must be applied first to the portions sold, a pro rata sharing will be deemed to exist only if the agreement also provides that, in the event of a default or comparable event defined in the agreement, participants must share in all subsequent repayments and collections in proportion to their percentage participation at the time of the occurrence of the event.

(b) Loans, or extensions of credit, including portions thereof, that have been charged off the books of the bank in whole or in part, provided that the amounts charged off are:

(i) unenforceable by reason of discharge in bankruptcy;

(ii) no longer legally enforceable because of expiration of the statute of limitations or a judicial decision; or

(iii) no longer legally enforceable for other reasons, provided that the bank maintains sufficient records to demonstrate that the loan is unenforceable.

(c) All other loans or portions of loans specifically exempted by provisions of 32-1-432 , MCA, or other applicable laws.

History: 32-1-432, MCA; IMP, 32-1-432, MCA; NEW, 1993 MAR p. 2776, Eff. 11/25/93; AMD, 1996 MAR p. 2161, Eff. 8/9/96; TRANS, from Commerce, 2001 MAR p. 1178.

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