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{{4-1-90 p.C-538}}
[¶10,113] In the Matter of Bank of Arlington, Arlington, Texas, Docket No. FDIC-90-81b (9/14/90).
Bank to cease and desist from such practices as operating with management whose policies and practices are detrimental to the Bank and jeopardize the safety of its deposits; operating with board of directors who failed to adequately supervise and direct management; operating with inadequate level of capital protection and excessive level of adversely classified assets; engaging in hazardous lending and ineffective and lax collection practices; failing to provide adequate loan loss reserve; creating concentrations of credit; and operating in violation of applicable Federal and State laws and regulations. (This order was terminated by order of the FDIC dated 12-10-90; see ¶ 15,199.)
[.1] Primary Capital-Increase-Methods
[.2] Shareholders-Dividends-Approval
[.3] Assets-Adversely Classified-Reduce
[.4] Loan Loss Reserve-Adequacy-Minimum Requirements
[.5] Loans-Extension of Credit-Existing Borrowers-Curtail
[.6] Management-Qualifications-Compliance
[.7] Board of Directors-Reorganization-Outside Directors
[.8] Definition-`Outside Director'
[.9] Loan Policy-Revise-Minimum Requirements
[.10] Loan Portfolio-Review Committee
[.11] Violations of Law and Regulation-Correct and/or Eliminate
[.12] Technical Exceptions-Correct and/or Eliminate
[.13] Loan Participations-Prohibit-Exceptions
[.14] Concentrations of Credit-Reduce
[.15] Shareholders-Disclosure-Cease and Desist Order
[.16] Compliance-Progress Reports
{{12-31-90 p.C-539}}
In the Matter of
BANK OF ARLINGTON
ARLINGTON, TEXAS
(Insured State Nonmember Bank)
ORDER TO CEASE AND DESIST
FDIC-90-81b
The Federal Deposit Insurance Corporation ("FDIC"), on June 13, 1990, issued to Bank of Arlington, Arlington, Texas ("Bank"), a NOTICE OF CHARGES AND OF HEARING ("NOTICE") under section 8(b)(1) of the Federal Deposit Insurance Act 12 U. S. C. § 1818(b)(1) ("Act"). The NOTICE charged the Bank with having engaged in unsafe or unsound banking practices and/or violations of law, rules or regulations. The Bank, through its board of directors, and counsel for the FDIC thereafter executed a STIPULATION AND CONSENT TO THE ISSUANCE OF AN ORDER TO CEASE AND DESIST ("CONSENT AGREEMENT") dated September 14, 1990, whereby solely for the purpose of this proceeding and without admitting or denying the allegations in the NOTICE, the Bank consented to the issuance of an ORDER TO CEASE AND DESIST ("ORDER") by the FDIC.
The FDIC considered the matter and determined that it had reason to believe that the Bank had engaged in unsafe or unsound banking practices and had violated laws and/or regulations. The FDIC, therefore, accepted the CONSENT AGREEMENT and issued the following:
ORDER TO CEASE AND DESIST
IT IS ORDERED, that the Bank and institution-affiliated parties of the Bank cease and desist from the following unsafe or unsound banking practices and violations of laws and/or regulations:
(a) Operating the Bank with management whose policies and practices are detrimental to the Bank and jeopardize the safety of its deposits;
(b) Operating the Bank without adequate supervision and direction by the board of directors over the management of the Bank;
(c) Operating with an inadequate level of capital protection;
(d) Operating the Bank with an excessive level of adversely classified assets;
(e) Engaging in hazardous lending and ineffective and lax collection practices;
(f) Failing to provide an adequate reserve for loan losses;
(g) Creating concentrations of credit as more fully set forth on page 2-b of the Report of Examination of the Bank as of December 29, 1989;
(h) Operating the Bank in violation of applicable Federal and State laws and regulations as more fully set forth on pages 6-a and 6-a-1 of the Report of Examination of the Bank as of December 29, 1989.
IT IS FURTHER ORDERED, that the Bank and Institution-affiliated parties of the Bank take affirmative action as follows:
[.1] 1. (a) In addition to any requirement to increase the primary capital of the Bank contained in any other Order or Notification issued pursuant to Section 8(a) of the Act, 12 U.S.C. 1818(a), within 60 days after the effective date of this ORDER and for so long thereafter as this ORDER is outstanding, the Bank shall achieve and maintain adjusted primary capital equal to or greater than 7.5 percent of the Bank's adjusted total assets.
(b) If such ratio is less than 7.5 percent as determined at an examination or visitation by the FDIC or the State Banking Department ("State"), the Bank shall, within 30 days after receipt of a written notice of the capital deficiency from the Regional Director of the FDIC's Dallas Regional Office ("Regional Director") or the Banking Commissioner for the State of Texas ("Commissioner") present to the Regional Director and the Commissioner a plan to increase the primary capital of the Bank or to take other measures to bring the ratio to 7.5 percent. After the Regional Director and Commissioner respond to the plan, the board of directors of the Bank shall adopt the plan, including any modifications or amendments requested by the Regional Director and Commissioner.
Thereafter, the Bank shall immediately initiate measures detailed in the plan, to the extent such measures have not previously been initiated, to increase its primary capital by an amount sufficient to bring the ratio to 7.5 percent within 90 days after the Regional Director and Commissioner re-
{{12-31-90 p.C-540}}spond to the plan. Such increase in primary capital and any increase in primary capital necessary to meet the ratio required by this ORDER may be accomplished by:
(i) The sale of securities in the form of common stock; or
(ii) The collection in cash of assets classified Loss or Doubtful as of December 29, 1989, and charged off in accordance with the provisions of this ORDER without loss or liability to the Bank; or
(iii) The collection in cash of assets charged off prior to December 29, 1989; or
(iv) The direct contribution of cash subsequent to December 29, 1989 by the directors and/or shareholders of the Bank; or
(v) Any other method approved by the Regional Director and the Commissioner.
(c) If all or part of the increase in primary capital required by this ORDER is to be accomplished by the sale of new securities, the board of directors of the Bank shall adopt and implement a plan for the sale of such additional securities, including soliciting proxies and the voting of any shares or proxies owned or controlled by them in favor of the plan. Should the implementation of the plan involve a public distribution of the Bank's securities (including a distribution limited only to the Bank's existing shareholders), the Bank shall prepare offering materials fully describing the securities being offered, including an accurate description of the financial condition of the Bank and the circumstances giving rise to the offering, and any other material disclosures necessary to comply with Federal securities laws. Prior to the implementation of the plan, and in any event, not less than 20 days prior to the dissemination of such materials, the plan and any materials used in the sale of the securities shall be submitted to the FDIC, Registration and Disclosure Section, Washington, D. C. 20429, for review. Any changes requested to be made in the plan or the materials by the FDIC shall be made prior to their dissemination. If the increase in primary capital is provided by the sale of perpetual preferred stock and/or mandatory convertible debentures, then all terms and conditions of the issue including, but not limited to, those terms and conditions relative to interest rate and any convertibility factor shall be presented to the Regional Director for prior approval.
(d) In complying with the provisions of this ORDER and until such time as any such public offering is terminated, the Bank shall provide to any subscriber and/or purchaser of the Bank's securities written notice of any planned or existing development or other change which is materially different from the information reflected in any offering materials used in connection wit the sale of the Bank's securities. The written notice required by this paragraph shall be furnished within 10 days after the date such material development or change was planned or occurred, whichever is earlier, and shall be furnished to every purchaser and/or subscriber who received or was tendered the information contained in the Bank's original offering materials.
(e) For the purposes of this ORDER, the terms "primary capital" and "total assets" shall have the meanings ascribed to them in Part 325 of the FDIC's Rules and Regulations, respectively subsections 325.2(h) and (k), 12 C.F.R. § 325.2(h) and (k). "Adjusted primary capital" and "adjusted total assets" shall be calculated according to the methodology set forth in the Analysis of Capital section in a report of examination or visitation of the FDIC or the State.
[.2] 2. While this ORDER is in effect, the Bank shall not declare or pay either directly or indirectly any cash dividend to shareholders without the prior written consent of the Regional Director and the Commissioner.
[.3] 3. (a) Upon the effective date of this ORDER, the Bank shall, to the extent that it has not previously done so, eliminate from its books, by charge-off or collection, all assets or portions of assets classified Loss by the FDIC as a result of its examination of the Bank as of December 29, 1989. Reduction of these assets through proceeds of loans made by the Bank is not considered "collection" for the purposes of this paragraph.
(b) Within 30 days after the effective date of this ORDER, the Bank shall submit a written plan to the Regional Director and the Commissioner to reduce the
{{12-31-90 p.C-541}}remaining assets classified Substandard as of December 29, 1989. The plan shall address each asset so classified with a balance of $100,000 or greater and provide the following:
(i) The name under which the asset is carried on the books of the Bank;
(ii) Type of asset;
(iii) Actions to be taken in order to reduce the classified asset;
(iv) Time frames for accomplishing the proposed actions.
(c) The Bank shall present the plan to the Regional Director and the Commissioner for review. Within 30 days after their response, the plan, including any modifications or amendments requested by the Regional Director and the Commissioner, shall be adopted by the board of directors of the Bank. The Bank shall thereafter immediately initiate measures detailed in the plan to the extent such measures have not previously been initiated.
(d) For purposes of the plan, the reduction of the level of adversely classified assets as of December 29, 1989 may be accomplished by:
(i) charge-off;
(ii) collection; or
(iii) sufficient improvement in the quality of adversely classified assets so as to warrant removing any adverse classification, as determined by the FDIC.
(e) While this ORDER is in effect, the Bank shall eliminate from its books, by charge-off or collection, all assets or portions of assets classified Loss as determined at any examination or visitation conducted by the FDIC or the State at such time as the report of examination or visitation is received by the Bank.
[.4] 4. (a) Within 10 days after the effective date of this ORDER, the Bank shall establish and thereafter maintain an adequate reserve for loan losses. Such reserve shall be established by charges to current operating income. Prior to the end of each calendar quarter, the board of directors of the Bank shall review the adequacy of the Bank's reserve for loan losses. Such reviews shall include, at a minimum, the Bank's loan loss experience, an estimate of potential loss exposure in the portfolio, trends of delinquent and nonaccrual loans and prevailing and prospective economic conditions. The minutes of the board meetings at which such reviews are undertaken shall include complete details of the reviews and the resulting recommended increases in the reserve for loan losses.
(b) Within 30 days after the effective date of this ORDER, the Bank shall review Consolidated Reports of Condition and Reports of Income filed with the FDIC on or after December 31, 1989, and amend said reports if necessary to properly reflect the financial condition of the Bank as of the date of each such report. In particular, such reports shall contain an adequate provision for loan losses. Reports filed after the effective date of this ORDER shall also accurately reflect the financial condition of the Bank as of the reporting date.
[.5] 5. (a) While this ORDER is in effect, the Bank shall not extend, directly or indirectly, any additional credit to or for the benefit of any borrower who has an extension of credit with the Bank that has been classified Loss, in whole or in part, and is uncollect, or to any borrower who is already obligated in any manner to the Bank on any extension of credit, including any portion thereof, that has been charged off the books of the Bank and remains uncollect. The requirements of this paragraph shall not prohibit the Bank from renewing credit already extended to a borrower after full collection, in cash, of interest due from the borrower.
(b) While this ORDER is in effect, the Bank shall not extend, directly or indirectly, any additional credit to or for the benefit of any borrower whose extension of credit is classified Doubtful and/or Substandard, either in whole or in part, and is uncollect, unless the Bank's board of directors has signed a detailed written statement giving reasons why failure to extend such credit would be detrimental to the best interests of the Bank. The statement shall be placed in the appropriate loan file and included in the minutes of the applicable board of directors' meeting.
[.6] 6. The Bank shall have and retain qualified management. At a minimum, such management shall include a chief exec-
{{12-31-90 p.C-542}}utive officer with proven ability in managing a bank of comparable size and experience in upgrading a low quality loan portfolio. Such person shall be provided the necessary written authority to implement the provisions of this ORDER. The qualifications of management shall be assessed on its ability to: (i) comply with the requirements of the ORDER, (ii) operate the Bank in a safe and sound manner, (iii) comply with applicable laws and regulations, and (iv) restore all aspects of the Bank to a safe and sound condition, including asset quality, capital adequacy, earnings, management effectiveness, and liquidity. During the life of the ORDER, the Bank shall notify the Regional Director and the Commissioner in writing of any changes in management. The notification must include the names and background of any replacement personnel and must be provided prior to the individual assuming the new position.
[.7] 7. (a) Within 30 days after the date of this ORDER, the Bank shall prepare a plan for submission to the shareholders at their next meeting to reorganize the board of directors either by increasing the number of directors or by appointing new directors so that for so long as this ORDER is outstanding at least 50 percent of the members of the board shall be independent, outside directors as defined herein.
[.8] (b) For purposes of this ORDER, an "outside director" shall be an individual:
(i) Who shall not be employed by the Bank or its affiliates other than as a director of the Bank or an affiliate;
(ii) Who shall not own or control more than 5 percent of the voting stock of the Bank or its holding company;
(iii) Who shall not be indebted to the Bank or any of its affiliates in an amount greater than 5 percent of the Bank's;
(iv) Who shall not be related to any director, principal shareholder of the Bank or to any director or principal shareholder of any affiliate of the Bank; and
(v) Who shall be a resident of, or engage in business in, the Bank's trade area.
[.9] 8. Within 60 days after the effective date of this ORDER, the Bank shall revise, adopt, and implement written lending and collection policies and procedures to provide effective guidance and control over the Bank's lending function. Such policies and their implementation shall be in the form and manner acceptable to the Regional Director, as determined at subsequent examinations or visitations, and shall include, at a minimum, the following:
(a) A requirement that the Bank shall not purchase loan participations until the Bank has obtained complete financial information and the participations are in full compliance with the Bank's lending policies and procedures;
(b) Standards for extending credit to Bank directors, officers, shareholders and their related interests which take into account applicable Federal and State laws governing such extensions of credit;
(c) A provisions that deviations from the written lending policies and procedures require prior approval of the board of directors of the Bank;
(d) Standards setting forth appropriate limitations on concentrations of credit;
(e) Standards under which unsecured loans, including overdrafts, may be granted;
(f) Guidelines for obtaining and reviewing independent real estate appraisals as well as for ordering reappraisals when needed.
[.10] 9. Within 30 days after the effective date of this ORDER, the board of directors shall establish a loan review committee to periodically review the Bank's loan portfolio and identify and categorize problem credits. The committee shall file a report with the board of directors. Such report shall include the following information.
(a) The overall quality of the loan portfolio;
(b) The identification, by type and amount, of each problem or delinquent loan;
(c) The identification of all loans not in conformance with the Bank's lending policy; and
(d) The identification of all loans to officers, directors, principal shareholders or their related interests.
At least 50 percent of the members of the loan review committee shall be independent, outside directors as that term is defined in this ORDER.
{{4-30-91 p.C-543}}
[.11] 10. After the effective date of this ORDER, the Bank, consistent with sound banking practices, shall eliminate and/or correct all violations of laws and/or regulations existing in the Bank as of December 29, 1989, as more fully set forth on pages 6-a and 6-a-1 of the December 29, 1989 Report of Examination. In addition, the Bank shall ensure its future compliance with all applicable laws and regulations.
[.12] 11. Within 90 days after the effective date of this ORDER, the Bank, to the best of its ability using reasonable effort, shall eliminate and/or correct all technical exceptions with regard to loan documentation existing in the Bank as of December 29, 1989, as more fully set out on page 2-d of the December 29, 1989 Report of Examination.
[.13] 12. While this ORDER is in effect, the Bank shall not repurchase any loan participations unless legally obligated to do so if (a) the loan has been adversely classified at an examination or visitation conducted by the FDIC, the State, or any appropriate Federal depository institution regulatory agency and remains classified as of the date of repurchase, or (b) the loan exhibits any of the following characteristics:
(i) The loan is in nonaccrual status or should be in nonaccrual status as defined in the instructions for preparation of Reports of Condition and Reports of Income; or
(ii) The principal or interest payments on the loan are more than 30 days past due; or
(iii) The terms of the loan have been renegotiated or compromised due to the deteriorating financial condition of the borrower.
[.14] 13. Within 60 days after the effective date of this ORDER, the Bank shall submit a plan to the Regional Director and the Commissioner to reduce the concentrations of credit as reported on page 2-b of the Report of Examination dated December 29, 1989.
[.15] 14. After the effective date of this ORDER, the Bank shall send to its shareholders or otherwise furnish a description of this ORDER, (1) in conjunction with the Bank's next shareholder communication, and also (2) in conjunction with its notice or proxy statement preceding the Bank's next shareholder meeting. The description shall fully describe the ORDER in all material respects. The description and any accompanying communication, statement, or notice shall be sent to the FDIC, Registration and Disclosure Unit, Washington, D.C. 20429, for review at least 20 days prior to dissemination to shareholders. Any changes requested to be made by the FDIC shall be made prior to dissemination of the description, communication, notice, or statement.
[.16] 15. Within 30 days after the end of the first calendar quarter following the effective date of this ORDER, and within 30 days after the end of each calendar quarter thereafter, the Bank shall furnish written progress reports to the Regional Director and the Commissioner detailing the form and manner of any actions taken to secure compliance with this ORDER and the results thereof. Such reports may be discontinued when the corrections required by this ORDER have been accomplished and the Regional Director and the Commissioner have released the Bank in writing from making further reports.
16. The effective date of this ORDER shall be 10 days after the date of its issuance. This ORDER shall be binding upon the Bank and institution-affiliated parties of the Bank.
This ORDER shall remain effective and enforceable except to the extent that, and until such time as, any provision of this ORDER shall have been modified, terminated, suspended, or set aside by the FDIC.
Pursuant to delegated authority.
Dated at Dallas, Texas, this 14th day of September, 1990.
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