Each depositor insured to at least $250,000 per insured bank



Home > Regulation & Examinations > Bank Examinations > FDIC Enforcement Decisions and Orders




FDIC Enforcement Decisions and Orders

ED&O Home | Search Form | Text Search | ED&O Help



{{4-30-94 p.C-1851}}
   [10,424] In the Matter of United States Trust Company, Boston, Massachusetts, Docket No. FDIC-92-19b (1-23-92).

   Bank to cease and desist from such unsafe or unsound practices as operating with excessive volumes of adversely classified assets; following hazardous lending and lax collection practices; operating with inadequate capital; operating in violation of applicable laws or regulations; operating with management whose policies are detrimental to the Bank; operating with inadequate loan documentation; engaging in practices which produce inadequate operating income; failing to provide adequate supervision over the Bank's affairs; paying excessive cash dividends; operating with inadequate allowance for loan and lease losses; failing to submit Reports of Condition and Income in accordance with instructions; and operating with inadequate routine and controls. (This order was terminated by order of the FDIC dated 2-11-94; see ¶ 15,808.)

   [.1] Management—Qualifications—Review
   [.2] Management—Management Plan—Minimum Requirements
   [.3] Allowance for Loan and Lease Losses—Establish/Maintain
   [.4] Capital—Tier 1 Capital—Increase/Maintain—Methods
   [.5] Loans—Risk Position—Reduce—Written Plan Required
   [.6] Loans—Extensions of Credit—Existing Borrowers—Curtail
   [.7] Loans—Overdue—Accrual of Interest
   [.8] Loan Policy—Written Revision—Minimum Requirements
   [.9] Profit Plan—Minimum Requirements
   [.10] Funds Management—Written Policy Required
   [.11] Investment Policy—Revision—Minimum Requirements
   [.12] Dividends—Restricted
   [.13] Technical Exceptions—Eliminate/Correct
   [.14] Violations of Law—Eliminate/Correct
   [.15] Audit—Affiliated Organizations—Review
   [.16] Compliance Reports—Frequency

In the Matter of

UNITED STATES TRUST COMPANY
BOSTON, MASSACHUSETTS
(Insured State Nonmember Bank)
ORDER TO CEASE
AND DESIST

FDIC-92-19b

   United States Trust Company, Boston, Massachusetts ("Bank"), having been advised of its right to 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 of its right to a hearing on such alleged charges under section 8(b)(1) of the Federal Deposit Insurance Act ("Act"), 12 U.S.C. § 1818(b)(1), and having waived those rights, 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 January 15, 1992, whereby solely for the purpose of this proceeding and without admitting or denying
{{4-30-94 p.C-1852}}any allegations or implications of fact or the existence of any unsafe or unsound banking practices or violations of law and/or regulations, or any other factual grounds for the issuance of an order under section 8(b) of the Act, 12 U.S.C. § 1818(b), 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 HEREBY ORDERED that the Bank and its institution-affiliated parties, as that term is defined in section 3(u) of the Act, 12 U.S.C. § 1813(u), cease and desist from the following unsafe or unsound banking practices and violations of law and/or regulations:
   (a) operating with an excessive volume of adversely classified assets;
   (b) engaging in inadequate lending and lax collection practices, including maintaining an excessive volume of adversely classified loans;
   (c) operating with inadequate capital for the kind and quality of assets held;
   (d) engaging in violations of applicable laws and regulations;
   (e) operating with management whose policies and practices are detrimental to the Bank;
   (f) operating with deficient or inadequate loan documentation, including but not limited to current financial statements, insurance coverage, title searches or legal opinions, and cash flow and/or operating information;
   (g) engaging in practices which produce inadequate operating income and excessive loan losses;
   (h) failing to provide adequate supervision and direction over the affairs of the Bank to prevent unsafe or unsound practices and violations of law and/or regulations;
   (i) paying excessive cash dividends in relation to the Bank's net income and/or capital position;
   (j) operating with an inadequate allowance for loan and lease losses for the volume, kind and quality of loans held;
   (k) failing to submit Reports of Condition and Income in accordance with prevailing instructions;
   (l) operating without proper internal routine and controls.
   IT IS FURTHER ORDERED, that the Bank (and its institution-affiliated parties, to the extent such parties are subject to this ORDER pursuant to the Act), take affirmative action as set forth below. However, solely for purposes of enforcement of this ORDER by the FDIC pursuant to section 8(i) of the Act, 12 U.S.C. § 1818(i), the Bank and its institution-affiliated parties will not be deemed to have engaged in any unsafe or unsound banking practice or violation of law and/or regulation described in any of the above provisions, except to the extent the Bank is not in compliance with the following provisions:

   [.1] 1. (a) Within one hundred twenty (120) days from the effective date of this ORDER, the Bank shall have and retain qualified management. At a minimum, such management shall include a loan review officer with proven loan supervision experience for the type and quality of the Bank's loans. Such person shall be provided the necessary written authority to implement the relevant provisions of this ORDER. The qualifications of management shall be assessed on its ability to take effective action toward the accomplishment of the following goals:

       (i) compliance with the requirements of this ORDER,
       (ii) operation of the Bank in a safe and sound manner,
       (iii) compliance with applicable laws and regulations, and
       (iv) restoration of 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 this ORDER, the Bank shall notify the Regional Director of the FDIC's Boston Regional Office ("Regional Director") in writing of any changes in management in the manner and to the extent required by section 303.14 of the FDIC's Rules and Regulations, 12 C.F.R. § 303.14, with a copy of such notice to the Commissioner of Banks for the Commonwealth of Massachusetts ("Commissioner"). The notification must include the names and background of any replace- {{3-31-92 p.C-1853}}ment personnel and must be provided prior to the individual's assuming the new position.

   [.2] (b) Toward this end, within ninety (90) days from the effective date of this ORDER, the Board of Directors shall develop, with such assistance from the Bank's management or any outside consultants as the Board may deem appropriate, a written analysis and assessment of the Bank's management and staffing needs ("management plan"), which shall include, at a minimum:

       (i) identification of both the type and number of officer positions needed to manage and supervise properly the affairs of the Bank;
       (ii) identification and establishment of such Bank committees as are needed to provide guidance and oversight to active management;
       (iii) evaluation of each Bank officer listed in Exhibit B attached hereto to determine whether these individuals possess the ability, experience and other qualifications required to perform present and anticipated duties, including adherence to the Bank's established policies and practices, and maintenance of the Bank in a safe and sound condition; and
       (iv) a plan of action to recruit and hire any additional or replacement personnel with the requisite ability, experience and other qualifications, which the Board of Directors determines are necessary to fill Bank officer or staff member positions consistent with the Board's analysis, evaluation and assessment as provided in paragraphs 1(b)(i) and 1(b)(iii) of this ORDER.
   (c) The written management plan shall be submitted to the Regional Director and the Commissioner for review and comment. No sooner than thirty (30) days, but under no circumstances more than sixty (60) days after such submission, the Board of Directors shall approve the written management plan, taking into consideration any comments received from the Regional Director and/or Commissioner within such thirty-day period, and such approval shall be recorded in the minutes of the Board of Directors. Subsequent modifications to the written management plan may be made only after giving the Regional Director and the Commissioner written notice of the proposed modification, and after consideration of any responsive comments submitted by the Regional Director and/or the Commissioner within thirty (30) days from their receipt of the notice of proposed modification. No such modification shall become effective until approved by the Board of Directors, and such approval shall be recorded in the minutes of the Board of Directors. The Bank, its directors, officers and employees shall implement and follow the written management plan and/or any subsequent modification thereto.
   (d) (i) The written management plan shall also include the requirement that the Board of Directors of the Bank, or a committee or committees thereof consisting of not less than a majority of Board members who are independent with respect to the Bank, provide supervision over lending, investment and operating policies of the Bank sufficient to ensure that the Bank complies with the provisions of this ORDER.
   (ii) At or before the next meeting of the sole shareholder of the Bank, and at or before each succeeding meeting of the sole shareholder at which Bank directors are to be elected, the members of the Board of Directors shall recommend to the shareholder the election of candidates to the Board of Directors who are independent with respect to the Bank, in such number as is necessary to cause a majority of the Board of Directors to be and to remain independent with respect to the Bank.
   (iii) For purposes of this ORDER, an individual who is "independent with respect to the Bank" shall be any individual (1) who is not an officer of the Bank or any of its affiliated organizations and who does not own more than five (5.0) percent of the outstanding shares of the Bank or any of its affiliated organizations, (2) who is not related by blood, marriage or common financial interest to an officer of the Bank or to any stockholder owning more than five (5.0) percent of the Bank's or any of its affiliated organizations' outstanding shares, and (3) who is not indebted to the Bank or any affiliated organizations, directly or indirectly (in- {{3-31-92 p.C-1854}}cluding the indebtedness of any entity in which the individual has a substantial financial interest), in an amount exceeding five (5.0) percent of the Bank's total equity capital and allowance for loan and lease losses.
   (e) The Bank's Board of Directors shall meet at least monthly. The Board shall prepare in advance and shall follow a detailed written agenda at each meeting, which shall include consideration of actions of any committees. A chronological file of all written agendas shall be maintained. Notwithstanding the foregoing, the Board shall not be precluded from considering matters other than those contained in the agenda. Detailed written minutes of all Board meetings shall be maintained and recorded on a timely basis.

   [.3] 2. (a) Within ten (10) days from the effective date of this ORDER, the Bank shall have increased its allowance for loan and lease losses ("Reserve") existing as of May 31, 1991 by $5,500,000 at a minimum.
   (b) Immediately after complying with paragraph 2(a), the Bank shall eliminate from its books, by charge-off (which shall include the establishment of specific reserves) or collection, all assets of portions of assets classified "Loss" and fifty (50.0) percent of all assets or portions of assets classified "Doubtful" in the June 24, 1991 Report of Examination ("Examination"), which have not been previously collected or charged off. Reduction of these assets through use of proceeds of loans made by the Bank, other than to qualified third party borrowers, does not constitute "collection" or "elimination" for the purpose of this paragraph.
   (c) Thereafter, the Bank shall maintain its Reserve in accordance with the prevailing requirements of the Instructions for the Reports of Condition and Income ("Instructions"). Toward this end, within sixty (60) days from the effective date of this ORDER, the Bank's Board of Directors, with the assistance of management, shall establish a comprehensive policy for determining the adequacy of the Bank's Reserve. The policy shall provide for a review of the Reserve at least once each calendar quarter. The review should focus on the results of the Bank's internal loan review, loan loss experience, trends of delinquent and non-accrual loans, an estimate of potential loss exposure on significant credits, concentrations of credit, and present and prospective economic conditions. Review of other real estate owned and exposure therein shall be undertaken along the same lines as the aforementioned loan portfolio review. The adequacy of the Reserve in relation to the loss potential in the loan portfolio will be reviewed by the Board of Directors and adjustments to the Reserve will be made accordingly. Details of these reviews will be incorporated into the minutes of the Board of Directors, including the factors considered and/or the methodology used to determine the adjustments made.
   (d) Reports of Condition and Income required to be submitted by the Bank as of each Report date, as that term is used in the Instructions, between and including June 30, 1991 and the effective date of this ORDER, shall, at a minimum, reflect a Reserve that is in accordance with the Instructions. If necessary to comply with this paragraph 2(d), the Bank shall file amended Reports of Condition and Income within ten (10) days from the effective date of this ORDER.
   (e) Prior to the submission of any Report of Condition or Report of Income required to be filed by the Bank after the effective date of this ORDER, the Board of Directors of the Bank shall: (1) review the adequacy of the Bank's Reserve, (2) provide for an adequate Reserve, and (3) cause the Bank to accurately report the Reserve in any such Report of Condition and Income. The minutes of the Board meeting at which such review is undertaken shall indicate the results of the review, including any increases in the Reserve, and the basis for determining the amount of Reserve provided.

   [.4] 3. (a) (i) The Bank's Board of Directors will take all steps necessary to increase the Bank's ratio of Tier 1 capital to total assets ("Tier 1 leverage capital ratio") within the time frames specified as follows: within six (6) months from the effective date of this ORDER, the Bank's Tier 1 leverage capital ratio shall be brought to a level at or in excess of five and one-half (5.5) percent and within twelve (12) months from the effective date of this ORDER, the Bank's Tier 1 leverage capital ratio will be brought to a level at or in excess of
{{3-31-92 p.C-1855}}six (6.0) percent and thereafter the Bank shall continue to maintain its Tier 1 leverage capital ratio at or in excess of such six (6.0) percent level as calculated herein while this ORDER is in effect. At no time while this ORDER is in effect shall the Bank's Tier 1 leverage capital ratio fall below two (2.0) percent. Toward these ends, the Bank shall develop a Capital Plan which will be submitted to the Regional Director and the Commissioner for approval within sixty (60) days from the effective date of this ORDER. The Capital Plan should address both internal and external sources of capital augmentation, including capital infusions, retention of earnings, restrictions of asset growth and asset sales.
   (ii) For purposes of this ORDER, the terms "Tier 1 capital" and "total assets" shall have the meanings ascribed to them in the revised Part 325 of the FDIC's Rules and Regulations, 12 C.F.R. Part 325, which became effective April 10, 1991.
   (b) In calculating the Bank's Tier 1 leverage capital ratio under paragraph 3(a) initially, the Bank shall first comply fully with paragraphs 2(a) and (b) of this ORDER. Thereafter, such ratio and its component parts shall be determined only after the Bank has made such additions to its Reserve so as to bring the Reserve into compliance with the prevailing requirements of the Instructions and charged off any losses identified subsequent to the Examination.
   (c) Any increase in the Tier 1 leverage capital ratio made by the Bank in order to meet the requirements of paragraph 3(a) of this ORDER may be accomplished by:

       (i) the retention of earnings;
       (ii) the sale of new offerings of common stock or noncumulative perpetual preferred stock;
       (iii) the sale or transfer of existing shares of the Bank's sole shareholder to a purchaser or purchasers who or which will contribute the required increase in capital to the Bank;
       (iv) the collection of all or part of assets classified: (A) "Loss" in the Examination, without loss or liability to the Bank, or (B) "Doubtful" in the Examination, without further or additional loss or liability to the Bank, provided any collection on such assets shall first be applied to that portion of the asset which was not charged off pursuant to paragraph 2 of this ORDER. Reductions to loans and leases classified "Loss" and "Doubtful" shall first be credited to the remaining balance outstanding with regard to such loans and leases and the remainder, if any, then to the Reserve, and, if the Board of Directors' review of the adequacy of the Reserve required by paragraph 2 of this ORDER indicates that the Reserve has a balance in excess of that required for adequacy, any such excess may be transferred to equity capital through a negative provision to the Reserve;
       (v) the collection in cash of assets previously charged off;
       (vi) the sale or other disposition of assets by the Bank or a merger transaction involving the Bank;
       (vii) any combination of the above means; or
       (viii) any other means acceptable to the Regional Director and the Commissioner.
   (d) If, after having achieved the six (6.0) percent Tier 1 leverage capital ratio as specified in paragraph 3(a)(i), such ratio declines below six (6.0) percent, the Bank, within sixty (60) days after the end of the month during which said ratio so declined, shall submit a written plan to the Regional Director and the Commissioner for increasing such ratio up to or in excess of six (6.0) percent within sixty (60) days after the written plan is implemented. Thereafter, the Bank shall continue to maintain its Tier 1 leverage capital ratio at or in excess of such level as calculated herein while this ORDER is in effect. Upon approval by the Regional Director and the Commissioner, the Bank shall immediately implement the written plan.
   (e) In addition to the requirements of paragraphs 3(a)-(d), the Bank shall comply with the FDIC's Statement of Policy on Risk-Based Capital found in Appendix A to Part 325 of the FDIC Rules and Regulations, 12 C.F.R. Part 325, App. A.
   (f) If all or part of any increase in capital made by the Bank in order to meet the
{{3-31-92 p.C-1856}}requirements of this paragraph 3 involves an offering, other than an offering deemed not to be a public securities offering pursuant to 17 C.F.R. § 230.506 or as hereafter amended, of the Bank's securities (including a distribution limited only to the Bank's existing shareholders), the Bank shall prepare detailed offering materials fully describing the securities being offered, including an accurate description of the financial condition of the Bank and of this ORDER as well as the circumstances giving rise to the offering, and any other material disclosures necessary to comply with the Federal securities laws. Prior to the sale of the securities, and, in any event not less than twenty (20) days prior to the dissemination of such materials, the 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 materials by the FDIC shall be made prior to their dissemination.
   (g) In complying with the provisions of paragraph 3(f) of this ORDER, the Bank shall provide to any subscriber and/or prospective purchaser of Bank stock, prior to the sale of such stock, 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 Bank securities. The written notice required by this paragraph 3(g) shall be furnished within ten (10) calendar days from the date such material development or change was planned or occurred, whichever is earlier, to every purchaser and/or subscriber of Bank stock who received or was tendered the information contained in the Bank's original offering materials.
   (h) The Bank's Board of Directors shall maintain in its minutes a written record of all actions taken by the Bank to comply with the capital requirements of paragraphs 3(a) through 3(g) of this ORDER, including, at a minimum, any action to increase its Tier 1 capital by each of the methods specified in paragraphs 3(c)(i) through 3(c)(viii) of this ORDER.

   [.5] 4. (a) Within sixty (60) days from the effective date of this ORDER, the Board of Directors, with the assistance of management, shall develop a written plan of action to lessen the Bank's risk position with respect to each borrower who or which had outstanding principal debt or contingent liability owing to the Bank in excess of $1,500,000, and each parcel of other real estate owned with book value in excess of $1,500,000, which was classified "Substandard" or "Doubtful," in whole or in part, in the Examination. In developing such plan, the Bank shall, at a minimum:

       (i) in the case of loans and contingent liabilities, review the financial position of each such borrower, including source of repayment, repayment ability, and alternative repayment sources, and evaluate the available collateral for each such credit, including possible actions to improve the Bank's collateral position; and
       (ii) in the case of other real estate owned, evaluate the property and provide cost/benefit analyses of holding the property versus current liquidation value.
   Based upon such review and evaluation, the written plan of action shall also: (A) establish target dollar levels to which the Bank shall reduce, within six (6) and twelve (12) months from the effective date of this ORDER, the aggregate dollar volume of such "Substandard" or "Doubtful" classifications as of June 24, 1991; and (B) provide for the submission of written monthly progress reports to the Bank's Board of Directors for review and notation in the Board minutes for any such assets or contingent liabilities over $1,500,000. In addition, the plan shall include other provisions for the reduction of any additional items that may be subject to similar criticism according to the Bank's internal review, and submission of progress reports on same. All progress reports required under this paragraph shall be in the form of Exhibit A attached hereto, or in any other form that includes such information as is contained in such Exhibit A. As used in this paragraph 4, "reduce" means to (1) collect, (2) charge off, or (3) improve the quality of such assets or contingent liabilities so as to warrant removal of any adverse classification by the FDIC and the Commissioner. Payment of loans with the proceeds of other loans made by the Bank, other than loans to qualified third party borrowers, will not {{3-31-92 p.C-1857}}constitute "reduction" or "collection" for purposes of this ORDER.
   (b) The written plan of action described by paragraph 4(a) shall be submitted to the Regional Director and the Commissioner for review and comment. No sooner than thirty (30) days, but under no circumstances more than sixty (60) days after such submission, the Board of Directors shall approve the written plan of action, taking into consideration any comments received from the Regional Director and/or the Commissioner within such thirty-day period, and such approval shall be recorded in the minutes of the Board of Directors. Subsequent modifications to the written plan may be made only after giving the Regional Director and the Commissioner written notice of the proposed modification, and after consideration of any responsive comments submitted by the Regional Director and/ or the Commissioner within thirty (30) days from their receipt of the notice of proposed modification. No such modification shall become effective until approved by the Board of Directors, and such approval shall be recorded in the minutes of the Board of Directors. The Bank, its directors, officers and employees shall follow the written plan of action and/or any subsequent modification thereto.

   [.6] 5. The Bank shall not extend or renew, directly or indirectly, credit to, or for the benefit of, any borrower who or which, as of the Examination, has a loan or other extension of credit with the Bank that has been charged off or classified, in whole or in part, "Loss," "Doubtful," or "Substandard," and is uncollected, unless a majority of the Bank's Board of Directors first (1) determines that such advance or such credit facility under which future advances may be made is in the best interest of the Bank, (2) determines that the Bank has satisfied the requirements set out in paragraph 4 of this ORDER as to such borrower, if applicable, and (3) approves such advance or such credit facility under which future advances may be made. A written record of the Board of Directors' determination and approval of any advance or credit facility under the terms of this paragraph 5 shall be maintained in the credit file of the affected borrower(s) as well as the minutes of the Board of Directors. Notwithstanding the foregoing provisions, this ORDER shall not require such approvals by the Board of Directors for extensions of credit made pursuant to legally binding contractual commitments entered into by the Bank prior to the date of this ORDER.

   [.7] 6. The Bank shall not accrue interest on any loan that is, or becomes, ninety (90) days or more delinquent as to principal or interest, unless the loan is both well secured and in the process of collection. For purposes of this paragraph 6, "well secured" and "in the process of collection" shall have the same meaning as those terms have in the prevailing Instructions for the Reports of Condition and Income. The Bank shall reverse on its books all previously accrued but uncollected interest on any loan that has ceased to accrue interest pursuant to this provision.

   [.8] 7. (a) Within ninety (90) days from the effective date of this ORDER, the Bank shall revise its written loan policy, which revision shall include, at a minimum:

       (i) the lending authority of the loan officer;
       (ii) the lending authority of a loan or executive committee, if any;
       (iii) the responsibility of the Board of Directors in reviewing, ratifying and approving loans;
       (iv) the guidelines under which unsecured loans will be granted;
       (v) the guidelines for rates of interest and terms of repayment for unsecured loans and secured loans;
       (vi) with regard to secured loans: (1) limitations on the amount advanced in relation to the value of the collateral, and (2) the documentation required by the Bank for each type of secured loan;
       (vii) the maintenance and review of complete and current credit files on each borrower;
       (viii) appropriate and adequate collection procedures, including, but not limited to, the actions to be taken against borrowers who fail to make timely payments;
       (ix) guidelines establishing limitations on the maximum volume of loans in relation to total assets;
       (x) appropriate limitations on extension of credit through overdrafts and cash items;
    {{3-31-92 p.C-1858}}(xi) the determination and documentation of sources and terms of loan repayment;
       (xii) retention of lien searches and appraisals covering personal property and liens on real estate;
       (xiii) maintenance of written, individual loan file comments by officers;
       (xiv) provisions addressing the capitalization of accrued and unpaid interest on loans;
       (xv) procedures regarding designations of nonaccrual loans;
       (xvi) procedures for identifying, supervising, and collecting problem loans;
       (xvii) periodic review of the overdue, problem and/or adversely classified or special mention loans by the Board of Directors, so as to monitor management's administration of such distressed credits, and to provide guidance.
   (b) The revised written loan policy shall be submitted to the Regional Director and the Commissioner for review and comment. No sooner than thirty (30) days, but under no circumstances more than sixty (60) days after such submission, the Board of Directors shall approve the revised written loan policy, taking into consideration any comments received from the Regional Director and/or the Commissioner within such thirty-day period, and such approval shall be recorded in the minutes of the Board of Directors. Subsequent modifications to the revised written loan policy may be made only after giving the Regional Director and the Commissioner written notice of the proposed modification, and after consideration of any responsive comments submitted by the Regional Director and/or the Commissioner within thirty (30) days from their receipt of the notice of proposed modification. No such modification shall become effective until approved by the Board of Directors, and such approval shall be recorded in the minutes of the Board of Directors. The Bank, its directors, officers and employees shall follow the revised written loan policy and/or any subsequent modification thereto.

   [.9] 8. (a) Within ninety (90) days from the effective date of this ORDER, the Bank shall develop a written profit plan consisting of goals and strategies for improving the earnings of the Bank, which written profit plan shall include, at a minimum:

       (i) identification of the major areas in, and means by, which the Board of Directors will seek to improve the Bank's operating performance;
       (ii) realistic and comprehensive budgets;
       (iii) a budget review process to monitor the income and expenses of the Bank to compare actual figures with budgetary projections; and
       (iv) a description of the operating assumptions that form the basis for, and adequately support, major projected income and expense components.
   (b) The written profit plan shall be submitted to the Regional Director and the Commissioner for review and comment. No sooner than thirty (30) days, but under no circumstances more than sixty (60) days after such submission, the Board of Directors shall approve the written profit plan, taking into consideration any comments received from the Regional Director and/or the Commissioner within such thirty-day period, and such approval shall be recorded in the minutes of the Board of Directors. Subsequent modifications to the written profit plan may be made only after giving the Regional Director and the Commissioner written notice of the proposed modification, and after consideration of any responsive comments submitted by the Regional Director and/or the Commissioner within thirty (30) days from their receipt of the notice of proposed modification. No such modification shall become effective until approved by the Board of Directors, and such approval shall be recorded in the minutes of the Board of Directors. The Bank, its directors, officers, and employees shall follow the written profit plan and/or any subsequent modification thereto.

   [.10] 9. (a) Within sixty (60) days from the effective date of this ORDER, the Bank shall develop a written funds management policy which shall include, at a minimum:

       (i) the Bank's liquidity needs and plans for ensuring that such needs are met on an ongoing basis;
       (ii) goals and strategies for managing and/or improving the Bank's interest rate risk exposure;
    {{3-31-92 p.C-1859}}(iii) monitoring of the interest rate sensitivity of present investments and deposits and projections of the types of investments and deposits to improve such liquidity position; and
       (iv) coordination of the Bank's loan, investment, operating, and budget and profit planning policies with the written funds management policy.
   (b) The written funds management policy shall be submitted to the Regional Director and the Commissioner for review and comment. No sooner than thirty (30) days, but under no circumstances more than sixty (60) days after such submission, the Board of Directors shall approve the written funds management policy, taking into consideration any comments received from the Regional Director and/or the Commissioner within such thirty-day period, and such approval shall be recorded in the minutes of the Board of Directors. Subsequent modifications to the written funds management policy may be made only after giving the Regional Director and the Commissioner written notice of the proposed modification, and after consideration of any responsive comments submitted by the Regional Director and/or the Commissioner within thirty (30) days from their receipt of the notice of proposed modification. No such modification shall become effective until approved by the Board of Directors, and such approval shall be recorded in the minutes of the Board of Directors. The Bank, its directors, officers and employees shall follow the written funds management policy and/or any subsequent modification thereto.

   [.11] 10. Within sixty (60) days from the effective date of this ORDER, the Bank shall develop a written investment policy consisting of goals and strategies for improving the quality of the Bank's investment portfolio, including acceptable percentage ranges by security type, maturity distribution guidelines, limitations on holdings of marketable equity securities, and guidelines for trading activities. The written investment policy shall be submitted to the Regional Director and the Commissioner for review and comment. No sooner than thirty (30) days, but under no circumstances more than sixty (60) days after such submission, the Board of Directors shall approve the written investment policy, taking into consideration any comments received from the Regional Director and/or the Commissioner within such thirty-day period, and such approval shall be recorded in the minutes of the Board. Subsequent modifications to the written investment policy may be made only after giving the Regional Director and the Commissioner written notice of the proposed modification, and after consideration of any responsive comments submitted by the Regional Director and/or the Commissioner within thirty (30) days from their receipt of the notice of proposed modification. No such modification shall become effective until approved by the Board of Directors, and such approval shall be recorded in the minutes of the Board of Directors. The Bank, its directors, officers and employees shall follow the written investment policy and/or any subsequent modification thereto.

   [.12] 11. The Bank shall not pay or declare any dividends without the prior written consent of the Regional Director and the Commissioner.

   [.13] 12. Within sixty (60) days from the effective date of this ORDER, the Bank shall correct the remediable technical exceptions on loans noted on pages 2-d through 2-d-2 of the Examination.

   [.14] 13. Within sixty (60) days from the effective date of this ORDER, the Bank shall eliminate and/or correct the contravention of FDIC statement of policy and all remediable violations of law and regulations committed by the Bank as described on pages 6-b through 6-c-9 of the Examination.

   [.15] 14. (a) Within ninety (90) days from the effective date of this ORDER, the Bank shall cause an independent study or audit to be made of all transactions between the Bank and its affiliates between January 1, 1990 through the effective date of this ORDER. Following completion of the study or audit, the Bank's Board of Directors shall promptly review the findings of the study or audit and report those findings in the minutes of the meeting at which it conducts its review.
   (b) Within sixty (60) days of receipt of the findings of the study or audit and based on the actual findings, the Bank's Board of Directors, with the assistance of management, shall make a specific allocation of premises and property rental costs, equipment costs and personnel costs, sal- {{3-31-92 p.C-1860}}ary or wages (including personnel benefits) resulting from the transactions between the Bank and its affiliates between January 1, 1990 through the effective date of this ORDER. The Bank's Board of Directors shall expressly state the dollar amounts and related items regarding its allocation of costs in the minutes of the meeting at which it makes the allocation. Promptly after making the allocation of costs, the Bank's Board of Directors shall take all reasonable and appropriate action, including legal action, necessary to recover any and all excess unreimbursed amounts made by the Bank to its affiliates.
   (c) Within sixty (60) days from the receipt of the findings of the study or audit, the Bank's Board of Directors shall finalize and implement a written policy governing all transactions between the Bank and its affiliates, including but not limited to the following items:

       (i) A requirement that the affiliates promptly pay the Bank the fair market cost of using the Bank's premises or other property, equipment and/or personnel. Any such payment shall not be less than the cost to the Bank of each such item or expense borne thereby.
       (ii) A requirement that the Bank pay no more than the fair market cost of using the affiliates' premises or other property, equipment and/or personnel.
       (iii) A requirement that the Bank's Board of Directors annually or more often approve the method and manner in which the Bank handles intercompany transactions with affiliates. The Bank's Board of Directors shall expressly state in the minutes of the meeting at which it makes each such approval the exact dollar amount of such intercompany transactions made during the preceding year, the Bank's expenses incurred in connection with such transactions, and the Bank's plan for such transactions during the upcoming year.
   (d) For purposes of this paragraph 14, the various references to affiliates of the Bank shall be deemed not to include US-Trust of Cambridge, Massachusetts; provided, however, that if the consolidation of all of the banking businesses (which would not encompass certain non-banking operations, including trust and asset management) of the Bank and said USTrust or, alternatively, the merger of the Bank and USTrust, has not been approved by the FDIC by July 31, 1992, or such later date as the FDIC may determine, or if instructed by the FDIC or the Commissioner, then the independent study or audit required under paragraph 14(a) shall be expanded and revised as necessary to cover transactions between the Bank and USTrust between January 1, 1990 and the effective date of this ORDER. After completion of any such expanded study or audit, the Bank and its Board of Directors shall be required to comply in a timely manner with all of the requirements set forth in paragraphs 14(a)-(c) with respect to such expanded study or audit.

   [.16] 15. Within thirty (30) days from the last day of the month in which this ORDER becomes effective, and, thereafter, within thirty (30) days from the end of each calendar quarter, the Bank shall furnish written progress reports to the Regional Director and the Commissioner detailing the form and manner of any action taken to secure compliance with this ORDER and the results thereof. These progress reports shall include copies of the criticized asset reports for the last month of the previous quarter, as described in paragraph 4(a) of this ORDER. In addition, the Bank shall furnish any other reports on request of either the Regional Director or the Commissioner. All progress reports and other written responses to this ORDER shall be reviewed by the Board of Directors of the Bank and made a part of the minutes of the Board meeting.
   This ORDER shall become effective ten (10) days from the date of its issuance.
   The provisions of this ORDER shall be binding upon the Bank and its institution-affiliated parties.
   This ORDER has been reviewed and concurred in by the Commissioner.
   The provisions of this ORDER shall remain effective and enforceable except to the extent that, and until such time as, any provisions of this ORDER shall have been modified, terminated, suspended, or set aside by the FDIC.
   Dated at Needham, Massachusetts this 23rd day of January, 1992.
   Pursuant to delegated authority.

ED&O Home | Search Form | Text Search | ED&O Help

Last Updated 6/6/2003 legal@fdic.gov