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FDIC Enforcement Decisions and Orders

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{{3-31-97 p.C-3467}}
   [10,890] In the Matter of Visalia Community Bank, Visalia, California, Docket No. FDIC-93-141b (10-25-93).

   Bank to cease and desist from such unsafe or unsound practices as operating with inadequate supervision by the board of directors; operating with inadequate management; operating with inadequate capital and reserves; operating with an excessive level of poor quality assets; operating without adequate reserve for loan losses; following hazardous lending and lax collection practices; operating with inadequate provisions for liquidity and funds management; operating without proper internal routine and controls; and operating in violation of applicable laws or regulations. (This order was terminated by order of the FDIC dated 1-31-97. See ¶16,148.)

   [.1] Management—Qualifications—Review
   [.2] Capital—Tier 1 Capital—Increase/Maintain—Methods
   [.3] Assets—Adversely Classified—Eliminate/Reduce
   [.4] Loans—Extensions of Credit—Existing Borrowers—Curtail
   [.5] Lending and Collection Policy—Minimum Requirements
   [.6] Loans—Concentrations of Credit—Reduction Plan
   [.7] Loan Loss Reserve—Establish/Maintain
   [.8] Strategic Plan—Mid-Range—Preparation Required
   [.9] Assets—Average Assets—Limit on Increase
   [.10] Violations of Law—Eliminate/Correct
   [.11] Asset/Liability Management—Written Policy—Minimum Requirements
   [.12] Bank Operations—Internal Routine and Controls—Written Policy Required
   [.13] Reports of Condition and Income—Amendment Required
   [.14] Dividends—Restricted
   [.15] Shareholders—Disclosure—Cease and Desist Order

In the Matter of

VISALIA COMMUNITY BANK
VISALIA, CALIFORNIA
(Insured State Nonmember Bank)
ORDER TO
CEASE AND DESIST

FDIC-93-141b

   The Federal Deposit Insurance Corpora- {{3-31-97 p.C-3468}}tion ("FDIC"), on June 29, 1993, issued to Visalia Community Bank, Visalia, California ("Bank"), a NOTICE OF CHARGES AND OF HEARING ("NOTICE"), pursuant to section 8(b)(1) of the Federal Deposit Insurance Act ("Act"), 12 U.S.C. § 1818(b)(1). The NOTICE charges the Bank with having engaged in unsafe or unsound banking practices and violations of law and/or regulations.
   The insured institution and counsel for the FDIC thereafter executed a STIPULATION AND CONSENT TO THE ISSUANCE OF AN ORDER TO CEASE AND DESIST ("CONSENT AGREEMENT"), dated October 11, 1993, 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 committed violations of law 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 any institution-affiliated party as such 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:
   (a) operating with inadequate supervision by the board of directors:
   (b) operating with inadequate management:
   (c) operating with inadequate equity capital and reserves in relation to the volume and quality of assets held by the Bank:
   (d) operating with a large volume of poor quality loans:
   (e) operating with an inadequate loan valuation reserve:
   (f) following hazardous lending and lax collection practices:
   (g) operating with inadequate provisions for liquidity and funds management:
   (h) operating with inadequate routine and controls policies; and
   (i) operating in violation of section 23A of the Federal Reserve Act, 12 U.S.C. § 371c, made applicable to state nonmember insured institutions by section 18(j)(1) of the Act, 12 U.S.C. § 1828(j)(1), as more fully described on pages 6-a-6 and 6-a-7 of the Report of Examination as of October 13, 1992; section 22(h) of the Federal Reserve Act, as amended, 12 U.S.C. § 375b, as more fully described on pages 6-a-4, 6-a-5 and 6-a-6 of the Report of Examination as of October 13, 1992; and sections 215.4(a), 215.4(c), and 215.7 of Regulation O of the Board of Governors of the Federal Reserve System, 12 C.F.R. §§ 215.4(a), 215.4(c), and 215.7, made applicable to state nonmember institutions by section 18(j)(2) of the Act, 12 U.S.C. § 1828(j)(2), as more fully described on pages 6-a-4, 6-a-5 and 6-a-6 of the Report of Examination as of October 13, 1992; sections 337.2, 323.1, 323.4 and 323.5 of the FDIC Rules and Regulations, 12 C.F.R. §§ 337.2, 323.1, 323.4 and 323.5, as more fully described on pages 6-a-8 and 6-a-9 of the Report of Examination as of October 13, 1992; and section 858, 1221(a) and 1221(b) of the California Financial Code, as more fully described on pages 6-a, 6-a-1, 6-a-2, 6-a-3 and 6-a-7 of the Report of Examination as of October 13, 1992.
   IT IS FURTHER ORDERED that the Bank take affirmative action as follows:

   [.1] 1. Within 60 days from the effective date of this ORDER, the Bank shall employ and thereafter retain qualified management.
   (a) Each member of management shall have qualifications and experience commensurate with his or her duties and responsibilities at the Bank. Management should include a chief executive officer with proven ability in managing a Bank of comparable size, and experience in upgrading a low quality loan portfolio, improving earnings, and other matters needing particular attention. Management should also include a senior lending officer with significant appropriate lending, collection, and loan supervision experience and experience in upgrading a low quality loan portfolio. Each member of management shall be provided appropriate written authority from the Bank's board of directors to implement the provisions of this ORDER.
   (b) The qualifications of management shall be assessed on its ability to:

       (i) comply with the requirements of this ORDER:
       (ii) operate the Bank in a safe and sound manner:
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       (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.
   (c) During the life of this ORDER, the Bank shall notify the Regional Director of the FDIC's San Francisco Regional Office ("Regional Director") and the Superintendent of Banks for the State of California ("Superintendent") in writing when it proposes to add any individual to the Bank's board of directors or employ any individual as a senior executive officer. The notification must be received at least 30 days before such addition or employment is intended to become effective and should include a description of the background and experience of the individual or individuals to be added or employed as well as a specific job description.
   (d) The Bank may not add any individual to its board of directors or employ any individual as a senior executive officer if the Regional Director issues a notice of disapproval pursuant to section 32 of the Act, 12 U.S.C. § 1831i.

[.2] 2. (a) By March 31, 1994, the Bank shall increase adjusted Tier 1 capital by $3,500,000, or such greater amount that is necessary to increase its adjusted Tier 1 capital exclusive of minority interests to not less than six and one-half (6.5) percent of the Bank's adjusted total assets exclusive of minority interests. Thereafter, during the life of this ORDER, the Bank shall maintain adjusted Tier 1 capital exclusive of minority interests in such an amount as to equal or exceed six and one-half (6.5) percent of the Bank's adjusted total assets exclusive of minority interests.
   (b) The level of adjusted Tier 1 capital to be maintained during the life of this ORDER pursuant to Subparagraph 2(a) shall be in addition to a fully funded loan loss reserve, the adequacy of which shall be satisfactory to the Regional Director and Superintendent as reasonably determined by them at subsequent examinations and/or visitations.
   (c) Any increase in Tier 1 capital necessary to meet the requirements of Paragraph 2 of this ORDER may be accomplished by the following:

       (i) the sale of common stock (including sale to ESOP); or
       (ii) the sale of noncumulative perpetual preferred stock convertible at option of holder to common; or
       (iii) the direct contribution of cash by the board of directors, shareholders, and/or parent holding company; or
       (iv) earnings; or
       (v) gain on sale of assets; or
       (vi) any other means acceptable to the Regional Director and the Superintendent; or
       (vii) any combination of the above means.
Any increase in Tier 1 capital necessary to meet the requirements of Paragraph 2 of this ORDER may not be accomplished through a deduction from the Bank's loan loss reserves.
   (d) If all or part of the increase in Tier 1 capital required by Paragraph 2 of this ORDER is accomplished by the sale of new securities, the board of directors shall forthwith take all necessary steps to adopt and implement a plan for the sale of such additional securities, including the voting of any shares owned or proxies held 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 the Federal securities laws. Prior to the implementation of the plan and, in any event, not less than fifteen (15) 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, 550 - 17th Street, N.W., Washington, D.C. 20429, for review. Any changes requested to be made in the plan or materials by the FDIC shall be made prior to their dissemination. If the increase in Tier 1 capital is provided by the sale of noncumulative per- {{12-31-93 p.C-3470}}petual preferred stock, then all terms and conditions of the issue, including but not limited to those terms and conditions relative to interest rate and convertibility factor, shall be presented to the Regional Director and the Superintendent for prior approval. In complying with the provisions of Paragraph 2 of this ORDER, the Bank shall provide to any subscriber and/or purchaser of the Bank's securities, a written notice of any planned or existing development or other changes which are 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 shall be furnished within ten (10) days from the date such material development or change was planned or occurred, whichever is earlier, and shall be furnished to every subscriber and/or purchaser of the Bank's securities who received or was tendered the information contained in the Bank's original offering materials.
   (e) For the purposes of this ORDER, the terms "Tier 1 capital" and "total assets" shall have the meanings ascribed to them in Part 325 of the FDIC Rules and Regulations, 12 C.F.R. §§ 325.2(t) and 325.2(v). The terms "adjusted Tier 1 capital," and "adjusted total assets" shall be calculated as outlined on page 3 of the FDIC Report of Examination of the Bank as of the examination date of September 30, 1992, as issued October 13, 1992.

[.3] 3. (a) Within 10 days from the effective date of this ORDER, the Bank shall eliminate from its books, by charge-off or collection, all assets classified "Loss" and one-half of the assets classified "Doubtful" as of October 13, 1992, that have not been previously collected or charged off. Elimination of these assets through proceeds of other loans made by the Bank is not considered collection for the purpose of this paragraph.
   (b) Within 30 days from the effective date of this ORDER, the Bank shall have reduced the assets classified "Substandard" and those assets classified "Doubtful" as of October 13, 1992 that have not previously been charged off to not more than $11,000,000.
   (c) Within 150 days from the effective date of this ORDER, the Bank shall have reduced the assets classified "Substandard" and those assets classified "Doubtful" as of October 13, 1992 that have not previously been charged off to not more than $10,000,000.
   (d) Within 270 days from the effective date of this ORDER, the Bank shall have reduced the assets classified "Substandard" and those assets classified "Doubtful" as of October 13, 1992 that have not previously been charged off to not more than $8,800,000.
   (e) Within 390 days from the effective date of this ORDER, the Bank shall have reduced the assets classified "Substandard" and those assets classified "Doubtful" as of October 13, 1992 that have not previously been charged off to not more than $8,100,000.
   (f) Within 480 days from the effective date of this ORDER, the Bank shall have reduced the assets classified "Substandard" and those assets classified "Doubtful" as of October 13, 1992 that have not previously been charged off to not more than $5,000,000.
   (g) The requirements of subparagraphs 3(a), 3(b), 3(c), 3(d), 3(e), and 3(g) of this ORDER are not to be construed as standards for future operations and, in addition to the foregoing, the Bank shall eventually reduce the total of all adversely classified assets. Reduction of these assets through proceeds of other loans made by the Bank is not considered collection for the purpose of this paragraph. As used in subparagraphs 3(b), 3(c), 3(d), 3(e), 3(f), and 3(g) the word "reduce" means:

       (i) to collect; or
       (ii) to charge-off; or
       (iii) to sufficiently improve the quality of assets adversely classified to warrant removing any adverse classification, as determined by the FDIC.

[.4] 4. (a) Beginning with the effective date of this ORDER, the Bank shall not extend, directly or indirectly, any additional credit to, or for the benefit of, any borrower who has a loan or other extension of credit from the Bank that has been charged off or classified, in whole or in part, "Loss" or "Doubtful" and is uncollected. The requirements of this paragraph shall not prohibit the Bank from renewing (after collection in cash of in- {{12-31-93 p.C-3471}}terest due from the borrower) any credit already extended to any borrower.
   (b) Additionally, during the life of this ORDER, the Bank shall not extend, directly or indirectly, any additional credit to, or for the benefit of, any borrower who has a loan or other extension of credit from the Bank that has been classified, in whole or part, "Substandard" and is uncollected.
   (c) Paragraph 4(b) shall not apply if the Bank's failure to extend further credit to a particular borrower would be detrimental to the best interests of the Bank. Prior to the extending of any additional credit pursuant to this paragraph, either in the form of a renewal, extension, or further advance of funds, such additional credit shall be approved by a majority of the board of directors, or a designated committee thereof, who shall certify, in writing:
       (i) why the failure of the Bank to extend such credit would be detrimental to the best interests of the Bank:
       (ii) that the Bank's position would be improved thereby; and
       (iii) how the Bank's position would be improved. The signed certification shall be made a part of the minutes of the board of directors or designated committee, and a copy of the signed certification shall be retained in the borrower's credit file.

[.5] 5. (a) Within 90 days from the effective date of this ORDER, the Bank shall revise, adopt, and implement written lending and collection policies 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 and the Superintendent as determined at subsequent examinations and/or visitations.
   (b) The initial revisions to the Bank's loan policy and practices, required by this paragraph, in addition to addressing each of the criticisms outlined on pages 6 and 6-1 of the Report of Examination issued October 13, 1992 (as of September 30, 1992, examination date), at minimum, shall include the following:
       (i) provisions, consistent with FDIC instructions for the preparation of Reports of Condition and Income, under which the accrual of interest income is discontinued and previously accrued interest is reversed on delinquent loans:
       (ii) provisions which prohibit the capitalization of interest or loan related expense unless the board of directors supports in writing and records in the minutes of the corresponding board of directors meeting why an exception thereto is in the best interests of the Bank:
       (iii) provisions which require complete loan documentation, realistic repayment terms and current credit information adequate to support the outstanding indebtedness of the borrower. Such documentation shall include current financial information, profit and loss statements or copies of tax returns and cash flow projections:
       (iv) provisions which incorporate limitations on the amount that can be loaned in relation to established collateral values:
       (v) provisions which specify the circumstances and conditions under which real estate appraisals must be conducted by an independent third party:
       (vi) provisions which establish standards for unsecured credit:
       (vii) provision which establish officer lending limits:
       (viii) provisions that require extensions of credit to any of the Bank's executive officers, directors, or principal shareholders, or to any related interest of such persons, to be approved in advance by a majority of the entire board of directors in accordance with section 215.4(b) of Regulation O of the Board of Governors of the Federal Reserve System, 12 C.F.R. § 215.4(b):
       (ix) provisions which prohibit the issuance of standby letters of credit unless the letters of credit are fully secured by readily marketable collateral and/or are supported by current and complete financial information:
       (x) provisions that directors first determine that the lending staff has the expertise necessary to properly supervise construction loans and that adequate procedures are in place to monitor any construction involved before funds are disbursed:
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       (xi) provisions which prohibit concentrations of credit in excess of 25 percent of the Bank's total equity capital and reserves to any borrower and that borrower's related interests:
       (xii) provisions which require the preparation of a loan "watch list" which shall include relevant information on all loans in excess of $100,000 which are classified "Substandard" and "Doubtful" as of the September 30, 1992, Report of Examination issued on October 13, 1992 or by the FDIC or California State Banking Department in subsequent Reports of Examination and all other loans in excess of $100,000 which warrant individual review and consideration by the board of directors as determined by the loan committee or active management. The loan "watch list" shall be presented to the board of directors for review at least monthly with such review noted in the minutes; and       (xiii) the board of directors shall adopt procedures whereby officer compliance with the revised loan policy is monitored and responsibility for exceptions thereto assigned. The procedures adopted shall be reflected in minutes of the board of directors meeting at which all members are present and the vote of each is noted.

   [.6] 6. Within 45 days from the effective date of this ORDER, the Bank shall develop a written plan, approved by its board of directors and acceptable to the Regional Director and the Superintendent for systematically reducing the concentrations of credit listed on pages 2-b and 2-b-1 in the Report of Examination as of October 13, 1992. At a minimum, such plan shall require the following specific reductions:
       (a) Within 180 days from the effective date of this ORDER, the Bank shall reduce the amount of loans or other extensions of credit advanced, directly or indirectly, to or for the benefit of any borrowers in the "Lot Acquisition and Development" Concentration to 150% of Tier 1 capital.
       (b) Within 360 days from the effective date of this ORDER, the Bank shall reduce the amount of loans or other extensions of credit advanced, directly or indirectly, to or for the benefit of any borrowers in the "Lot Acquisition and Development" Concentration to 125% of Tier 1 capital.
       (c) Within 540 days from the effective date of this ORDER, the Bank shall reduce the amount of loans or other extensions of credit advanced, directly or indirectly, to or for the benefit of any borrowers in the "Lot Acquisition and Development" Concentration to 100% of Tier 1 capital.

   [.7] 7. Within 10 days from the effective date of this ORDER, the Bank shall establish and thereafter maintain an adequate reserve for loan losses. Additionally, within 60 days from the effective date of this ORDER, the board of directors shall develop or revise, adopt and implement a comprehensive policy for determining the adequacy of the reserve for loan losses. For the purpose of this determination, the adequacy of the reserve shall be determined after the charge-off of all loans or other items classified "Loss." The policy shall provide for a review of the reserve at least once each calendar quarter. Said review should be completed at least ten (10) days prior to the end of each quarter, in order that the findings of the board of directors with respect to the loan loss reserve may be properly reported in the quarterly Reports of Condition and Income. The review should focus on the results of the Bank's internal loan review, loan loss experience, trends of delinquent and nonaccrual loans, an estimate of potential loss exposure of significant credits, concentrations of credit, and present and prospective economic conditions. A deficiency in the reserve shall be remedied in the calendar quarter it is discovered, prior to submitting the Report of Condition, by a charge to current operating earnings. The minutes of the board of directors meeting at which such review is undertaken shall indicate the results of the review. Upon completion of the review, the Bank shall increase and maintain its loss reserve consistent with the loan loss reserve policy established. Such policy and its implementation shall be satisfactory to the Regional Director and Superintendent as determined at subsequent examinations and/or visitations.

   [.8] 8. Within 45 days from the effective date of this ORDER, the Bank shall submit a revised mid-range strategic plan, covering the period January 1, 1994 through January 1, 1997, that will reflect changes in the Bank's balance sheet and ongoing opera- {{12-31-93 p.C-3473}}tions necessitated by the requirements of this document. In addition, such plan shall focus on restricting future growth to a level consistent with prudent banking standards and fully consistent with paragraphs 9 of this ORDER. The plan and its implementation shall be in a form and manner acceptable to the Regional Director and the Superintendent.

   [.9] 9. During the life of this ORDER, the Bank shall not increase its average assets by ten (10.0) percent or more per annum without receiving the prior written approval of the Regional Director and the Superintendent. Irrespective of the above, in no event shall the Bank increase its average assets by an amount that would result in a violation of the capital requirements set forth in Paragraph 2 of this ORDER.

   [.10] 10. Within 90 days from the effective date of this ORDER, the Bank shall eliminate and/or correct all violations of law which are more fully set out on pages 6-a through 6-a-9 of the September 30, 1992, Report of Examination of the Bank issued as of October 13, 1992. In addition, the Bank shall take all necessary steps to ensure future compliance with all applicable laws and regulations.

   [.11] 11. Within 90 days from the effective date of this ORDER, the board of directors shall develop, adopt and implement a comprehensive liquidity and asset/liability management policy. The policy shall address each of the criticisms outlined on pages 4-a-1, 5, and 5-1 of the Report of Examination as of October 13, 1992, and establish standards consistent with generally accepted prudent banking operations by:

       (a) establishing a range for the Bank's volatile liability dependency ratio, as computed by the FDIC in its Reports of Examination, which ratio shall, at no time be greater than ten (10.0) percent:
       (b) establishing a range for short-term investments to potentially volatile liabilities, as those terms are defined by the FDIC in its current edition of "A Users Guide for the Uniform Bank Performance Report":
       (c) establishing acceptable ranges for the Bank's rate sensitivity and gap ratios; and
       (d) establishing an asset/liability committee, including a description of its responsibilities, how often it will meet, how it will obtain information and guidance from the board of directors, and how its activities will be reported to the board of directors.

[.12] 12. (a) Within 90 days from the effective date of this ORDER, the Bank shall adopt and implement a policy for the operation of the Bank in such a manner as to provide adequate internal routine and control policies consistent with safe and sound banking practices. Such policy shall, at a minimum, eliminate and/or correct all internal routine and control deficiencies as more fully set forth on pages 6-b and 6-b-1 of the September 30, 1992, Report of Examination of the Bank issued as of October 13, 1992 and shall guarantee that the Bank will take all necessary steps to ensure future compliance with all applicable laws and regulations. Such policy and its implementation as determined at subsequent examinations and/or visitations.
   (b) Within 120 days from the effective date of this ORDER, the Bank shall develop an internal audit program that establishes procedures to protect the integrity of the Bank's operational and accounting systems. The program shall be in a form and manner acceptable to the Regional Director and the Superintendent as determined at subsequent examinations and/or visitations.

   [.13] 13. Within 10 days after eliminating from its books any asset in compliance with Paragraph 2 of this ORDER, the Bank shall file with the FDIC amended Consolidated Reports of Condition and Income which shall accurately reflect the financial condition of the Bank as of September 30, 1992. Thereafter, during the life of this ORDER, the Bank shall file with the FDIC Consolidated Reports of Condition and Income which accurately reflect the financial condition of the Bank as of the end of the period for which the Reports are filed, including any adjustment in the Bank's books made necessary or appropriate as a consequence of any California State Banking Department or FDIC examination of the Bank during that reporting period.

   [.14] 14. The Bank shall not pay cash dividends without the prior written consent of the Regional Director and the Superintendent, which consent shall not be unreasonably withheld.

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   [.15] 15. Following the effective date of this ORDER, the Bank shall send to its shareholders or otherwise furnish a description of this ORDER in conjunction with the Bank's next shareholder communication and also 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 Section, 550 - 17th Street, N.W., Washington, D.C. 20429, at least fifteen (15) 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. Within 30 days of the end of the first quarter following the effective date of this ORDER, and within thirty (30) days of the end of each quarter thereafter, the Bank shall furnish written progress reports to the Regional Director and the Superintendent detailing the form and manner of any actions taken to secure compliance with this ORDER and the results thereof. Such reports shall include a copy of the Bank's Report of Condition and the Bank's Report of Income. Such reports may be discontinued when the corrections required by this ORDER have been accomplished and the Regional Director and the Superintendent have released the Bank in writing from making further reports.
   The provisions of this ORDER shall be binding upon the Bank, its directors, officers, employees, agents, successors, assigns, and other persons participating in the conduct of the affairs of the Bank.
   This ORDER shall become effective ten (10) days from the date of its issuance.
   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 San Francisco, California, this 25th day of October, 1993.
   Pursuant to delegated authority.

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