| (a) Loans arising from the discount of commercial or
business paper.
(1) Pursuant to the Finance Code, §34.201(a)(1),
loans or extensions of credit arising from the discount of negotiable
commercial or business paper that evidences an obligation to the person
negotiating the paper are not subject to the lending limits of the
Finance Code, §34.201, or this subchapter, provided that:
(A) the paper is given in payment of the purchase price
of commodities purchased for resale, fabrication of a product, or
another business purpose that may reasonably be expected to provide
funds for payment of the paper; and
(B) the paper bears the full recourse endorsement of
the owner of the paper, except that paper discounted in connection
with export transactions may be transferred without recourse or with
limited recourse if supported by an assignment of appropriate insurance,
acceptable to the banking commissioner, covering the political, credit,
and transfer risks applicable to the paper, such as insurance provided
by the Export-Import Bank.
(2) A default in the payment of principal or interest
on commercial or business paper when due does not disqualify the exception
under this subsection or result in a loan or extension of credit to
the maker or endorser of the paper that is subject to lending limits,
provided that the amount of such defaulted paper must be included
in loans and extensions of credit thereafter until the default is
remedied for the purpose of determining whether additional loans or
extensions of credit to the same borrower may be made within applicable
lending limits.
(b) Bankers' acceptances. Pursuant to the Finance Code, §34.201(a)(2),
acceptance of drafts eligible for rediscount under 12 U.S.C. §372
and §373, or a bank's purchase of acceptances created by other
banks that are eligible for rediscount under those sections, is not
subject to the limits of the Finance Code, §34.201, or this subchapter.
Bankers' acceptances within this exception do not include:
(1) acceptance of drafts ineligible for rediscount,
thereby resulting in a loan from the bank to the customer for whom
the acceptance was made, in the amount of the draft;
(2) purchase of ineligible acceptances created by other
banks, thereby resulting in a loan from the purchasing bank to the
accepting bank, in the amount of the purchase price; or
(3) a bank's purchase of its own acceptances, thereby
resulting in a loan to the bank's customer for whom the acceptance
was made, in the amount of the purchase price.
(c) Obligations of state or local government. Pursuant
to the Finance Code, §34.201(a)(8), a loan or extension of credit
to this state or an agency or political subdivision of this state,
including a county or municipality or an agency or political subdivision
of a county or municipality, is not subject to the limitations of
the Finance Code, §34.201, or this subchapter to the extent the
loan or extension of credit constitutes a legally created general
obligation of the borrower, if the lending bank has obtained an opinion
of counsel or the opinion of the attorney general that the loan or
extension of credit is a valid and enforceable general obligation
of the borrower.
(d) Loans secured by U.S. obligations. Pursuant to
the Finance Code, §34.201, a loan or extension of credit to a
borrower is not subject to the limitations of the Finance Code, §34.201,
or this subchapter if the bank perfects a security interest in the
collateral under applicable law and the bank is fully secured by the
current market value of:
(1) bonds, notes, certificates of indebtedness, or
Treasury bills of the United States or by similar obligations fully
and unconditionally guaranteed as to principal and interest by the
United States; or
(2) loans to the extent unconditionally guaranteed
as to repayment of principal by the full faith and credit of the United
States, as further described by subsection (f) of this section.
(e) Loans to a federal agency. Pursuant to the Finance
Code, §34.201(b)(2), a loan or extension of credit to an agency
or instrumentality of the United States including a department, agency,
bureau, board, commission, or establishment of the United States,
or any corporation wholly owned directly or indirectly by the United
States, is not subject to the limitations of the Finance Code, §34.201,
or this subchapter.
(f) Government guaranteed loans. Pursuant to Finance
Code, §34.201(a)(8), a loan or extension of credit to a borrower
is not subject to the limitations of the Finance Code, §34.201,
or this subchapter to the extent secured by unconditional takeout
commitments, insurance, or guarantees of a governmental entity described
in subsection (c) or (e) of this section, provided the commitment
or guarantee is payable only in cash or its equivalent. If the purchasing,
insuring, or guaranteeing entity is described in subsection (c) of
this section, the lending bank must obtain an opinion of counsel that
the unconditional takeout commitment, insurance, or guarantee is a
valid and enforceable general obligation of the purchasing, insuring,
or guaranteeing entity. A takeout commitment, insurance, or guarantee
is considered unconditional if the protection afforded the bank is
not substantially diminished or impaired if loss should result from
factors beyond the bank's control. Protection against loss is not
materially diminished or impaired by procedural requirements such
as an agreement to pay on the obligation only in the event of default,
including default over a specific period of time, a requirement that
notification of default be given within a specific period after its
occurrence, or a requirement of good faith on the part of the bank.
(g) Loans secured by segregated deposit accounts. Pursuant
to the Finance Code, §34.201(a)(10), loans or extensions of credit
are not subject to the limitations of the Finance Code, §34.201,
and this subchapter to the extent secured by a segregated deposit
account in the lending bank, provided that:
(1) the lending bank has perfected its security interest
in the deposit under applicable law;
(2) if the deposit is eligible for withdrawal before
the secured loan matures, the bank establishes internal procedures
to prevent release of the security without the lending bank's prior
consent; and
(3) if the deposit is denominated and payable in a
currency other than that of the loan or extension of credit that it
secures, the deposit currency is freely convertible to U.S. dollars,
except that only that portion of the loan or extension of credit that
is fully secured by the U.S. dollar value of the deposit qualifies
for exception and only if the lending bank establishes procedures
to periodically revalue foreign currency deposits to ensure that the
loan or extension of credit remains fully secured at all times.
(h) Discount of installment consumer paper.
(1) Loans and extensions of credit to one borrower
arising from the discount of negotiable or nonnegotiable installment
consumer paper that carries a full recourse endorsement or unconditional
guarantee of payment by the person transferring the paper to the bank
is considered a loan or extension of credit to the transferor, as
well as the maker, and subject to the general lending limit, except
that the loan or extension of credit will not be considered made to
the transferor to the extent the bank has met the requirements of
the Finance Code, §34.201(a)(11), and this subsection. If the
transferor of the paper offers only partial recourse to the bank,
the exception provided by the Finance Code, §34.201(a)(11), and
this subsection is available only to the extent of the total amount
of paper the transferor may be obligated to repurchase or has guaranteed.
An unconditional guarantee may be in the form of a repurchase agreement,
separate guarantee agreement, or other agreement having the same effect.
A condition reasonably within the power or control of the bank to
perform will not render conditional an otherwise unconditional guarantee.
(2) In order to claim the installment consumer paper
exception under the Finance Code, §34.201(a)(11), and this subsection,
the bank must demonstrate its reliance on the maker of the paper by
maintaining records supporting the bank's independent credit analysis
of the maker's ability to repay the loan or extension of credit, maintained
by the bank or a third party that is contractually obligated to make
those records available for examination purposes, and a written certification
by an officer of the bank, specifically designated by the board of
the bank for this purpose, that the bank is relying primarily on the
maker for repayment of the loan or extension of credit and not on
a full recourse endorsement or unconditional guarantee by the transferor.
If installment consumer paper is purchased in substantial quantities,
the required records, evaluation, and certification must be in a form
appropriate for the class and quantity of paper involved. The bank
may use sampling techniques, or other appropriate methods, to independently
verify the reliability of the credit information supplied by the seller.
Cont'd... |
