As used in the Banking Act, unless the context otherwise requires:

A. “action” in the sense of a judicial proceeding means any proceeding in which rights are determined;

B. “allowances for loan and lease losses” means the difference between:

(1)     the balance of the valuation reserve on the date of the most recent federal financial institutions examination council report of condition or income plus additions to the reserve charged to operations since that date; and

(2)     losses charged against the allowance, net of recoveries; C. “board” means the board of directors of any given bank;

D. “capital” or “capital stock” means the amount of common stock outstanding and unimpaired plus the amount of perpetual preferred stock outstanding and unimpaired;

E. “capital surplus” means the total of those accounts reflecting:

(1)     amounts paid in excess of the par or stated value of capital stock; (2)     amounts contributed to the bank other than for capital stock;

(3)     amounts transferred from undivided profits pursuant to Section 58-1-55 N.M. Stat. Ann.; and

(4)     other amounts transferred from undivided profits;

F. “commissioner” or “director” means the director of the financial institutions division of the regulation and licensing department;

G. “community” means a city, town or village in this state;

H. “county” means any of the political subdivisions of this state as defined in N.M. Stat. Ann. Chapter 4, except that when applied to locations within the exterior boundaries of a federally recognized Indian reservation or pueblo, “county” means all lands within the exterior boundaries of that reservation or pueblo without regard to the county boundaries established in N.M. Stat. Ann. Chapter 4. For purposes of the Banking Act, the Indian reservation or pueblo lands defined as a “county” by this subsection shall be considered to be adjoining any of the counties, as defined by N.M. Stat. Ann. Chapter 4, that are adjoining the county or counties in which that Indian reservation or pueblo is located;

I. “court” means a court of competent jurisdiction;

J. “cumulative voting” means, in all elections of directors, each shareholder shall have the right to vote the number of shares owned by the shareholder for as many persons as there are directors to be elected or to cumulate such shares and give one candidate as many votes as the number of directors, multiplied by the number of the shareholder’s shares, shall equal or to distribute them on the same principle among as many candidates as the shareholder thinks fit. In deciding all other questions at meetings of shareholders, each shareholder shall be entitled to one vote on each share of stock held by the shareholder, except that this shall not be construed as limiting the voting rights of holders of preferred stock under the terms and provisions of articles of association or amendments thereto;

K. “department” or “division” means the financial institutions division of the regulation and licensing department;

L. “executive officer”, when referring to a bank, means any person designated as such in the bylaws and includes, whether or not so designated, the president, any vice president, the treasurer, the cashier and the comptroller or auditor, or any person who performs the duties appropriate to those offices;

M. “fiduciary” means a trustee, agent, executor, administrator, committee, guardian or conservator for a minor or other incompetent person, receiver, trustee in bankruptcy, assignee for creditors or any holder of a similar position of trust;

N. “good faith” means honesty in fact in the conduct or transaction concerned;

O. “intangible assets” means those purchased assets that are required to be reported as intangible assets by the federal deposit insurance corporation;

P. “item” means any instrument for the payment of money, even though it is not negotiable, but does not include money;

Q. “legal tender” means coins and currency;

R. “lessee” means a person contracting with a lessor for the use of a safe deposit box;

S. “lessor” means a bank or subsidiary renting safe deposit facilities and includes a safe deposit company organized and operating under the jurisdiction of the division solely for the purpose of leasing safe deposit facilities;

T. “limited life preferred stock” means preferred stock that has a stated maturity date or may be redeemed at the option of the holder;

U. “mandatory convertible debt” means a subordinated debt instrument that:

(1)     unqualifiedly requires the issuer to exchange either common or perpetual preferred stock for the instrument by a date on or before the expiration of twelve years; and

(2)     meets the requirements of Subparagraph (b) of Paragraph (2) of Subsection DD of this section or other requirements adopted by the division;

V. “minority interest in consolidated subsidiaries” means the portion of equity capital accounts of all consolidated subsidiaries of the bank that is allocated to minority shareholders of those subsidiaries;

W. “mortgage servicing rights” means the rights owned by the bank to service for a fee mortgage loans that are owned by others;

X. “officer”, when referring to a bank, means any person designated as such in the bylaws and includes, whether or not so designated, any executive officer, the chair of the board of directors, the chair of the executive committee and any trust officer, assistant vice president, assistant treasurer, assistant cashier, assistant comptroller or any person who performs the duties appropriate to those offices;

Y. “perpetual preferred stock” means preferred stock that does not have a stated maturity date and cannot be redeemed at the option of the holder;

Z. “person” means an individual, corporation, partnership, joint venture, trust estate or unincorporated association;

AA.         “reason to know” means that, to a person of ordinary intelligence, the fact in question exists or has a substantial chance of existing and that the exercise of reasonable care would predicate conduct upon the assumption of its existence;

BB.         “safe deposit box” means a safe deposit box, vault or other safe deposit receptacle maintained by a lessor, and the rules relating thereto apply to property or documents kept in safekeeping in the bank’s vault;

CC.         “state corporation commission” means the secretary of state; and

DD.         “surplus” or “unimpaired surplus fund”: (1)     means:

(a) the difference between: 1) the sum of capital surplus; undivided profits; reserves for contingencies and other capital reserves, excluding accrued dividends on perpetual and limited life preferred stock; minority interests in consolidated subsidiaries; and allowances for loan and lease losses; and 2) intangible assets, including those, other than mortgage servicing rights, purchased prior to April 15, 1985, but not to exceed twenty-five percent of Item 1) of this subparagraph;

(b) purchased mortgage servicing rights;

(c) mandatory convertible debt to the extent of twenty percent of the sum of Subparagraph (d) and Subparagraphs (a) and (b) of this paragraph; and

(d) other mandatory convertible debt, limited preferred stock and subordinated notes and debentures; and

(2)     is subject to the following limitations:

(a) issues of limited life preferred stock and subordinated notes and debentures, except mandatory convertible debt, must have original weighted average maturities of at least five years to be included in surplus;

(b) a subordinated note or debenture must also: 1) be subordinated to the claims of depositors; 2) state on the instrument that it is not a deposit and is not insured by the federal deposit insurance corporation; 3) be approved as capital by the division;

4) be unsecured; 5) be ineligible as collateral for a loan by the issuing bank; 6) provide that once any scheduled payments of principal begin, all scheduled payments shall be made at least annually and the amount repaid in each year shall be no less than in the prior year; and 7) provide that no accelerated payment by reason of default or otherwise may be made without the prior written approval of the division; and

(c) the total amount of mandatory convertible debt included in Subparagraph (d) of Paragraph (1) of this subsection considered as surplus is limited to fifty percent of the sum of Subparagraphs (a) and (c) of Paragraph (1) of this subsection.