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[¶10,123] In the Matter of The Colorado State Bank of Walsh, Walsh, Colorado, Docket No. FDIC-90-72b (10-26-90).
Bank and institution-affiliated parties ordered to cease and desist from operating with a Board and management whose policies are detrimental to the bank; operating without adequate supervision by the board; operating with an inadequate level of capital protection; operating with an excessive level of adversely classified assets; engaging in hazardous lending and ineffective collection practices; failing to provide an adequate loan loss reserve; extending inadequately secured credit; refinancing credits to financially weak borrowers without improving collateral margins; purchasing loans to out-of-area borrowers; failing to accurately reflect the condition of the bank in Reports of Condition and Income; operating without adequate liquidity and funds management; and creating concentrations of credit. (This order was terminated by order of the FDIC dated 3-10-93; see¶ 15,628.)
[.1] Primary Capital—Increase—Methods
[.2] Dividends—Restricted
[.3] Assets—Adversely Classified—Reduce—Written Plan
[.4] Loan Loss Reserve—Adequacy—Review
[.5] Reports of Condition and Income—Amend
[.6] Loans—Extensions of Credit—Curtail
[.7] Management—Qualifications—Compliance
[.8] Board of Directors—Reorganization—Outside Directors
[.9] Definition—"Outside Director"
[.10] Loan Policy—Preparation—Bank's Lending Area
[.11] Loan Portfolio Review Committee—Establish
[.12] Violations of Law—Eliminate/Correct
[.13] Technical Exceptions—Eliminate/Correct
[.14] Funds Management and Liquidity Policy—Requirements
[.15] Budget—Minimum Requirements—Review
[.16] Institution-Affiliated Parties—Transactions—Review
[.17] Audit—External
[.18] Concentrations of Credit—Reduce—Written Plan
[.19] Shareholders—Disclosure—Cease and Desist Order
[.20] Compliance—Progress Reports—Frequency
In the Matter of
THE COLORADO STATE BANK OF
WALSH
WALSH, COLORADO
(Insured State Nonmember Bank)
ORDER TO CEASE AND DESIST
FDIC-90-72b
The Colorado State Bank of Walsh, Walsh, Colorado ("Bank"), through its board of directors, having been served with a NOTICE OF CHARGES AND OF HEARING detailing the unsafe or unsound banking practices and violations of law and/or regulations alleged to have been committed by the Bank and its right to a hearing on the alleged charges under section 8(b) of the Federal Deposit Insurance Act ("Act"), 12 U.S.C. § 1818(b), and having
{{12-31-90 p.C-587}}waived that right, entered into a STIPULATION AND CONSENT TO THE ISSUANCE OF AN ORDER TO CEASE AND DESIST ("CONSENT AGREEMENT") with counsel for the Federal Deposit Insurance Corporation ("FDIC") dated August 23, 1990, whereby solely for the purpose of this proceeding and without admitting or denying the alleged charges of unsafe or unsound banking practices and violations of law and/or regulations, 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 law and/or regulations:
(a) Operating the Bank with a board of directors and 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) Extending credit which is inadequately secured and without adequate and appropriate supporting documentation;
(h) Refinancing credits to borrowers in weak financial positions without improving collateral margins or establishing structured repayment programs;
(i) Purchasing loans to out-of-area borrowers;
(j) Failing to accurately reflect the condition of the Bank in published statements and Consolidated Reports of Condition and Reports of Income;
(k) Operating the bank without adequate liquidity and proper regard for funds management;
(l) Creating concentrations of credit as more fully set forth on page 2-b of the Report of Examination of the Bank as of November 24, 1989; and
(m) Operating the Bank in violation of applicable Federal and State laws and regulations as more fully set forth on pages 6-a through 6-a-5 of the Report of Examination of the Bank as of November 24, 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 30 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 its 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 State Bank Commissioner for the State of Colorado ("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
{{12-31-98 p.C-588}}primary capital by an amount sufficient to bring the ratio to 7.5 percent within 90 days after the Regional Director and Commissioner respond 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 November 24, 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 November 24, 1989; or
(iv) The direct contribution of cash subsequent to November 24, 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 with 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.
(f) The requirements of paragraphs 1(a) and 1(b) shall be suspended hereunder for so long as the Bank is deemed by the FDIC to be in compliance with (1) the eligibility requirements of FDIC Rules and Regulations, Part 324, Agricultural Loan Loss Amortization, 12 C.F.R. § 324 ("Part 324"); (2) the approved capital plan accepted pursuant to Part 324, or any modifications thereto approved by the Regional Director; and (3) all conditions imposed by the FDIC upon the Bank's acceptance under Part 324. Upon written notice by the Regional Director to the Bank that the Bank's participation under Part 324 is revoked, the requirements of paragraphs 1(a) and 1(b)
{{12-31-90 p.C-589}}shall immediately become operative, with full force and effect, as part of this ORDER.
[.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 and one-half of the assets classified Doubtful by the FDIC as a result of its examination of the Bank as of November 24, 1989. Reduction of these assets through proceeds of loans made by the Bank is not considered "collection" for the purpose of this paragraph.
(b) Within 60 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 remaining assets classified Doubtful and Substandard as of November 24, 1989. At a minimum, the plan shall include the following:
(i) A schedule providing quarterly goals to reduce the remaining adversely classified assets as of November 24, 1989 to levels representing not more than a specified percentage of total equity capital and reserves as reported each quarter by the Bank in its Consolidated Reports of Condition and Reports of Income and shall include no less than six consecutive quarterly target dates;
(ii) An explanation showing the complete rationale used by the Bank in constructing the reduction schedule; and,
(iii) A provision requiring, at a minimum, quarterly reviews by the Bank's board of directors whereby the extent of the Bank's compliance with the plan is expressly addressed with the results of each review to be recorded in the corporate minutes of the board of directors.
(c) Upon written notice from the Regional Director or the Commissioner that the submitted plan is not acceptable, the Bank shall, within 30 days after receipt of such notice, submit amendments to the plan to the Regional Director and the Commissioner, including any modifications or amendments requested by the Regional Director or Commissioner. Upon written notice that the plan is accepted, it 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 November 24, 1989, to a specified percentage of total equity capital and reserves may be accomplished by:
(i) charge-off;
(ii) collection;
(iii) sufficient improvement in the quality of adversely classified assets so as to warrant removing any adverse classification, as determined by the FDIC; or
(iv) increase of total equity capital and reserves.
(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. In addition, the Bank shall submit amendments to the classified asset reduction plan as requested by the Regional Director and the Commissioner to account for assets that might be classified adversely at future examinations or visitations.
[.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
{{12-31-90 p.C-590}}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.
[.5] (b) Within 60 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, 1988, 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.
[.6] 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 uncollected 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 uncollected. 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, in whole or in part, and is uncollected 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.
[.7] 6. The Bank shall have and retain qualified management. Each member of management shall have qualifications and experience commensurate with his or her duties and responsibilities at the Bank. 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.
[.8] 7. (a) Within 60 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.
[.9] (b) For the 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 primary capital;
(iv) Who shall not be related to any director or 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.
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[.10] 8. (a) Within 60 days after the effective date of this ORDER, the Bank shall ensure that written lending and collection policies and procedures are in place and are being adhered to by Bank personnel so as to provide effective guidance and control over the Bank's lending function. Such policies and their implementation shall be in a form and manner acceptable to the Regional Director as determined at subsequent examinations or visitations.
(b) While this Order is in effect, the Bank shall not purchase loans to borrowers outside the Bank's lending area. The Bank's loan policy shall include a delineation of the lending area of the Bank.
[.11] 9. Within 60 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.
[.12] 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 November 24, 1989, as more fully set forth on pages 6-a through 6-a-5 of the November 24, 1989 Report of Examination. In addition, the Bank shall ensure its future compliance with all applicable laws and regulations.
[.13] 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 November 24, 1989, as more fully set out on pages 2-d through 2-d-4 of the November 24, 1989 Report of Examination. In addition, the Bank shall ensure complete and current documentation in the future for all loans.
[.14] 12. Within 90 days after the effective date of this ORDER, the Bank shall ensure that written funds management policies are in place which shall provide:
(a) An asset/liability management strategy to achieve an acceptable rate sensitivity balance between investments and funding sources;
(b) A plan to decrease the reliance of the Bank on short-term, potentially volatile liabilities for funding longer-term assets; and
(c) Procedures which will enable the board and management to monitor the Bank's liquidity position and maintain liquidity at an adequate level.
[.15] 13. (a) Within 60 days after the effective date of this Order, the Bank shall submit to the Regional Director and the Commissioner a written budget for the remainder of 1990 and calendar year 1991. The budget for the Bank shall set forth in detail all proposed balance sheet and income and expense items for these time frames, as well as the assumptions used in developing the budget. This budget shall incorporate a written plan for review and control of the Bank's expenses. This plan shall set forth all projected salaries, bonuses, income tax remittances, fees, and any other payments by the Bank to any institution-affiliated parties, their related interests as defined in section 22(h) of the Federal Reserve Act, 12 U.S.C. § 375b, and Regulation O, 12 C.F.R. Part 215, and/or affiliates of the Bank as defined in section 23A of the Federal Reserve Act, 12 U.S.C. § 371c. Any such payments shall be based upon services actually rendered or shall be otherwise justified and warranted, and the plan shall incorporate a specific discussion of the rationale employed in establishing the level of these payments. After the Regional Director and the Commissioner respond to the budget, the board of directors of the Bank shall adopt the budget, including any modifications or amendments requested by the Regional Director and the Commissioner.The
{{12-31-90 p.C-592}}board of directors of the Bank shall monitor adherence to the budget on a monthly basis and shall ensure that any payments made to any of the foregoing persons and/or entities are fully documented and justified. The Regional Director and the Commissioner shall be advised in writing at the end of each calendar quarter of the Bank's adherence to the budget.
[.16] (b) Within 60 days after the effective date of this Order, the board of directors of the Bank shall review all income tax remittances, fees, and any other payments paid by the Bank to any of the Bank's current or former institution-affiliated parties, their related interests as defined in section 22(h) of the Federal Reserve Act, 12 U.S.C. § 375b, and Regulation O, 12 C.F.R. Part 215, and/or affiliates of the Bank as defined in section 23A of the Federal Reserve Act, 12 U.S.C. § 371c for the period beginning January 1, 1984, through the effective date of this Order. Upon completion of this review, the Bank shall seek to recover any amounts determined to be owed to the Bank by any of the foregoing persons and/or entities.
[.17] 14. Within 90 days after the effective date of this ORDER, the Bank shall engage a qualified, independent auditing firm to perform an opinion audit of the Bank's books.
[.18] 15. Within 90 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 November 24, 1989.
[.19] 16. 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.
[.20] 17. 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.
18. 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 26th day of October, 1990.
