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{{7-31-94 p.C-2213}}    [10,523] In the Matter of Cheyenne Mountain Bank, Colorado Springs, Colorado, Docket No. FDIC-92-93b (4-27-92).

   Bank to cease and desist from such unsafe or unsound practices as operating with management whose policies are detrimental to the Bank; failing to provide adequate supervision over the Bank's affairs; operating with inadequate capital; operating with excessive volumes of adversely classified assets; following hazardous lending and lax collection practices; operating with inadequate allowance for loan and lease losses; operating without adequate loan policies and in contravention of written policies; extending credit which is inadequately secured and without sufficient documentation; operating without adequate funds management policy; operating in violation of applicable laws or regulations; operating with an excessive number of internal routine and controls deficiencies; operating without an adequate business plan; and operating without adequate internal loan review procedures. (This order was terminated by order of the FDIC dated 5-19-94; see ¶ 15,872.)

   [.1] Capital—Tier 1 Capital—Increase/Maintain—Methods
   [.2] Dividends—Restricted
   [.3] Assets—Adversely Classified—Eliminate/Reduce
   [.4] Allowance for Loan and Lease Losses—Establish/Maintain
   [.5] Management—Qualifications—Review
   [.6] Board of Directors—Election—Outside Directors Added
   [.7] Lending and Collection Policy—Minimum Requirements
   [.8] Board of Directors—Loan Review Committee
   [.9] Violations of Law—Eliminate/Correct
   [.10] Technical Exceptions—Eliminate/Correct
   [.11] Funds Management—Policy Revisions Required
   [.12] Bank Operations—Routine and Control Deficiencies—Correct
   [.13] Business Plan—Preparation Required
   [.14] Shareholders—Disclosure—Cease and Desist Order
   [.15] Compliance Reports—Frequency
{{7-31-94 p.C-2214}} In the Matter of

CHEYENNE MOUNTAIN BANK
COLORADO SPRINGS, COLORADO
(Insured State Nonmember Bank)
ORDER TO CEASE AND DE
FDIC-92-93b

   The Cheyenne Mountain Bank, Colorado Springs, Colorado ("Bank"), through its board of directors, having been advised of its right to the issuance and service of a NOTICE OF CHARGED 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 the alleged charges under section 8(b) of the Federal Deposit Insurance Act ("Act"), 12 U.S.C. § 1818(b), 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 March 20, 1992, 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 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 allowance for loan and lease losses;
   (g) Operating the Bank without adequate written loan policies and procedures;
   (h) Operating the Bank in contravention of written loan policies and procedures;
   (i) Renewing or extending credit without adequate and appropriate supporting documentation;
   (j) Operating the Bank without an adequate funds management policy;
   (k) Operating the Bank in violation of applicable Federal and State laws and regulations as more fully set forth on pages 6-b of the Report of Examination of the Bank as of November 8, 1991;
   (l) Operating the Bank with an excessive number of internal routine and control deficiencies;
   (m) Operating the Bank without an adequate Business Plan; and
   (n) Operating the Bank with inadequate internal loan review procedures.
   IT IS FURTHER ORDERED, that the Bank and institution-affiliated parties of the Bank take affirmative action as follows:

   [.1] 1. (a) Upon the effective date of this ORDER and for so long thereafter as this ORDER is outstanding, the Bank shall have and maintain adjusted Tier 1 capital, after establishing an adequate allowance for loan and lease losses, equal to or greater than 6.0 percent of the Bank's adjusted total assets. Any increase in Tier 1 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 direct contribution of cash subsequent to November 8, 1991 by the directors and/or shareholders of the Bank; or
       (iii) Any other method approved by the Regional Director of the FDIC's Dallas Regional Office ("Regional Director") and the State Bank Commissioner for the State of Colorado ("Commissioner").
(b) If the ratio of adjusted Tier 1 capital to adjusted total assets is less than 6.0 percent as determined at an examination by the FDIC or the State banking depart- {{6-30-92 p.C-2215}} ment ("State"), the Bank shall, within 30 days after receipt of a written notice of the capital deficiency from the Regional Director or the Commissioner, present to the Regional Director and the Commissioner a plan to increase the Tier 1 capital of the Bank or to take other measures to bring the ratio to 6.0 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 Tier 1 capital by an amount sufficient to bring the ratio to 6.0 percent within 60 days after the Regional Director and the Commissioner respond to the plan.
   (c) If all or part of the increase in Tier 1 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 Tier 1 capital is to be provided by the sale of noncumulative perpetual preferred stock, then all terms and conditions of the issue 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) In addition to the requirements of subparagraphs 1(a) - (b), 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) For the purposes of this ORDER, the terms "allowance for loan and lease losses," "Tier 1 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(a), (m), and (n), 12 C.F.R. 325.2(a), (m), and (n). "Adjusted Tier 1 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 of the FDIC.

   [.2] 2. While this ORDER is in effect, the Bank shall neither declare nor pay, 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 November 8, 1991. Reduction of these assets through proceeds of loans made by the Bank shall not be considered "collection" for the purpose of this paragraph. {{6-30-92 p.C-2216}} (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 Substandard as of November 8, 1991. 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 8, 1991 to the 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 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 then immediately initiate measures detailed in the plan to the extent such measures have not been initiated.
   (d) For purposes of the plan, the reduction of the level of adversely classified assets as of November 8, 1991, 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 conducted by the FDIC or the State at such time as the report of examination is received by the Bank.

   [.4] 4. (a) Within 10 days from the effective date of this ORDER, the Bank shall increase its allowance for loan and lease losses ("allowance") to an adequate level.
   (b) Thereafter, the Bank shall maintain its allowance in accordance with the prevailing requirements of the Instructions for the Consolidated Reports of Condition and Income ("Instructions"). Toward this end, within 60 days of this Order, the Bank's Board of Directors shall establish a comprehensive policy for determining the adequacy of the Bank's allowance. The policy shall provide for a review of the allowance 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. The adequacy of the allowance in relation to the loss potential in the loan portfolio will be reviewed by the Board of Directors, and adjustments to the allowance will be made accordingly. Details of these reviews will be incorporated into the minutes of the Board of Directors, including the methodology used to determine the adjustments.
   [.5] 5. The Bank shall have and retain qualified management. Each member of management shall possess qualifications and experience commensurate with his or her duties and responsibilities at the Bank. The qualifications of management personnel shall be evaluated on their 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 {{4-30-93 p.C-2217}}Commissioner in writing of any changes in management. The notification must include the name(s) and background(s) of any replacement personnel and must be provided prior to the individual(s) assuming the new position(s).

   [.6] 6. (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.
   (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 Tier 1 capital;
       (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.
   [.7] 7. 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 a form and manner acceptable to the Regional Director, as determined at subsequent examinations, and shall include, at a minimum, the following:
   (a) 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;
   (b) A provision that deviations from the written lending policies and procedures require prior approval of the board of directors of the Bank;
   (c) Guidelines for determining the adequacy of the allowance for loan and lease losses;
   (d) Maintenance of an adequate internal watch list; and
   (e) Guidelines for floor plan lending.
   [.8] 8. 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. This 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.

   [.9] 9. 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 8, 1991, as more fully set forth on pages 6-b of the November 8, 1991 Report of Examination. In addition, the Bank shall ensure its future compliance with all applicable laws and regulations.

   [.10] 10. Within 60 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 8, 1991, as more fully set out on pages 2-d and 2-d-1 of the November 8, 1991 Report of Examination. In addition, the Bank shall ensure that all appropriate loan documentation is obtained prior to extending or renewing credit.

   [.11] 11. Within 60 days after the effec- {{4-30-93 p.C-2218}} tive date of this ORDER, the Bank shall amend its written funds management policy. The Bank shall immediately initiate the measures detailed in the policy to the extent such measures have not been initiated. The funds management policy and its implementation shall be in a form and manner acceptable to the Regional Director, as determined at subsequent examinations and shall include, at a minimum, the following:

       (a) An asset/liability management strategy to achieve an acceptable rate sensitivity balance between investments and funding sources that is easily understood by management; and
       (b) Alternative sources of funds.
   [.12] 12. Within 60 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 internal routine and control deficiencies existing in the Bank as of November 8, 1991, as more fully set out on page 6-c of the November 8, 1991 Report of Examination.

   [.13] 13. Within 60 days after the effective date of this ORDER, the Bank shall prepare and present to the Regional Director and the Commissioner a revised Business Plan projecting asset growth, loan growth, deposit growth, earnings, and capital of the Bank for the three-year period beginning January 1, 1992. The Business Plan shall contain provisions to control the quality of the Bank's growth, ensure that the ratio of adjusted Tier 1 capital to adjusted total assets shall not be less than 6.0 percent during the life of this ORDER, and shall be updated annually to reflect any deviations or changes in the plan. After the Regional Director and the Commissioner respond to the Business Plan, the board of directors of the Bank shall adopt the plan, including any modifications or amendments requested by the Regional Director and the Commissioner.

   [.14] 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.

   [.15] 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 successive calendar quarter, 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 additional 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 all institution-affiliated parties of the Bank.
   The provisions of 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.
   Dated at Dallas, Texas, this 27 day of April, 1992.
   Pursuant to delegated authority.

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