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FDIC Enforcement Decisions and Orders


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   [11,947] In the Matter of First Security Bank & Trust, McLean, Island, Kentucky, Docket No. 02-065b (7-5-02).

   A cease and desist order was issued, based on findings by the FDIC that it had reason to believe that respondent had engaged in unsafe and unsound practices. (This order was terminated by order of the FDIC dated 10-13-04; see ¶16,398.)

   [.1] Management—Qualifications Specified

   [.2] Capital—Maintain Tier 1 Capital

   [.3] Loan Loss Reserve—Establishment of or Increase Required

   [.4] Profit Plan—Preparation of Plan Required

   [.5] Assets—Charge-off or Collection

   [.6] Loans—Extensions of Credit—To Borrowers with Existing Adversely Classified Credits

   [.7] Loan Policy—Preparation or Revision of Policy Required

   [.8] Loan Review and Grading System—Establishment of Required

   [.9] Loans—Concentration of Credit—Reduction Required
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   [.10] Violations of Law—Correction of Violations Required

   [.11] Interest Rate Risk Policy—Preparation or Revision of Policy Required

   [.12] Reports of Condition and Income—Amendment Required

   [.13] Dividends—Dividends Restricted

   [.14] Shareholders—Disclosure of Cease and Desist Order Required

In the Matter of
FIRST SECURITY BANK & TRUST,
McLEAN ISLAND, KENTUCKY
(Insured State Nonmember Bank)
ORDER TO CEASE AND DESIST

FDIC-02-065b

   First Security Bank & Trust, McLean, Island, Kentucky ("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 the 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 June 25, 2002, 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 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, its directors, officers, employees, agents, and other institution-affiliated parties (as that term is defined in Section 3(u) of the Act, 12 U.S.C. §1813(u)), and its successors and assigns cease and desist from the following unsafe or unsound banking practices and violations:

   (a) engaging in hazardous lending and lax collection practices;

   (b) operating with inadequate capital in relation to the kind and quality of assets held by the Bank;

   (c) operating with a large volume of poor quality loans;

   (d) operating with an inadequate loan valuation reserve;

   (e) operating with inadequate internal routine and controls policies;

   (f) operating in such a manner as to produce operating losses;

   (g) operating in such a manner as to produce low core earnings;

   (h) operating in violation of section 215.5(d)(4) of Regulation O of the Board of Governors of the Federal Reserve System, 12 C.F.R. §215.5(d)(4), made applicable to state nonmember banks by section 18(j)(2), 12 U.S.C. §1828(j)(2); section 337.2 of the FDIC's Rules and Regulations, 12 C.F.R. §337.2; in contravention of section 365.2 of the FDIC's Rules and Regulations, 12 C.F.R. §365.2; section 39 of the Act, 12 U.S.C. §1831p-1, and in contravention of Appendix A to Part 364 of the FDIC's Rules and Regulations, 12 C.F.R. §364; and chapter 287.280 of the Kentucky Revised Statutes, KRS §287.280;

   (i) operating with management whose policies and practices are detrimental to the Bank and jeopardize the safety of its deposits; and

   (j) operating with a board of directors which fails to provide adequate supervision over and direction to the active management of the Bank.

   IT IS FURTHER ORDERED that the Bank, its institution-affiliated parties, and its successors and assigns, take affirmative action as follows:

   [.1]1. (a) During the life of this ORDER, the Bank shall have management qualified to restore the Bank to a sound condition. Such management shall include a chief executive
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   officer and an experienced senior lending officer responsible for supervising the Bank's overall lending function.

   (b) Present management shall be assessed on its ability to:

   (i) Comply with the requirements of this ORDER;

   (ii) Improve and thereafter maintain the Bank in a safe and sound condition, including asset quality, capital adequacy, liquidity adequacy, earnings adequacy, and sensitivity to market risks; and

   (iii) Comply with all applicable State and Federal laws and regulations, and FDIC and Federal Financial Institutions Examination Council policy statements.

   (c) (i) During the life of this ORDER, the Bank shall notify the Regional Director of the Chicago Regional Office ("Regional Director") and the Commissioner of Financial Institutions for the Commonwealth of Kentucky ("Commissioner") in writing of any resignations and/or terminations of any members of its board of directors and/or any of its senior executive officer(s) within 15 days of the event.

   (ii) The Bank shall comply with section 32 of the Act, 12 U.S.C. §1831i.

   (d) (i) To ensure both compliance with this ORDER and qualified management for the Bank, the board of directors, within 90 days from the effective date of this ORDER, shall develop a written policy ("Management Policy") which shall incorporate an analysis of the Bank's management and staffing requirements and shall, at a minimum, address:

       (1) both the number and type of positions needed to properly manage the Bank,

       (2) a clear and concise description of the needed experience and pay for each job,

       (3) an evaluation of present management,

       (4) a plan to recruit, hire, or replace personnel with requisite ability and experience,

       (5) a periodic evaluation of each individual's job performance, and

       (6) the establishment and implementation of procedures to periodically review and update the Management Policy.

   (ii) The Management Policy and any subsequent modification thereto shall be submitted to the Regional Director and the Commissioner for review and comment. Within 30 days from receipt of any comment, and after consideration of such comment, the board of directors shall approve the Management Policy, which approval shall be recorded in the minutes of the meeting of the board of directors. Thereafter, the Bank and its directors, officers, and employees shall implement and follow the Management Policy and any modifications thereto.

   (e) Within 30 days from the effective date of this ORDER, the board of directors shall establish a committee of the board of directors with the responsibility to ensure that the Bank complies with the provisions of this ORDER. At least two-thirds of the members of such committee shall be independent, outside directors as defined herein. The committee shall report monthly to the entire board of directors, and a copy of the report and any discussion relating to the report or the ORDER shall be included in the minutes of the board of directors. Nothing contained herein shall diminish the responsibility of the entire board of directors to ensure compliance with the provisions of this ORDER.

   (f) For the purposes of this ORDER, an "outside director" shall be an individual:

   (i) Who shall not be employed, in any capacity, 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 15 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 equity capital and reserves; and

   (iv) Who shall be a resident of, or engage in business in, the Bank's trade area.

   (g) (i) Within 90 days from the effective date of this ORDER, the Bank's board of directors shall develop and adopt an education program for the Bank's board of directors that shall include, at a minimum,

       (a) specific training in the areas of lending, operations, and compliance with applicable Federal and State laws, rules, and regulations;

       (b) specific training in the duties and responsibilities of the board of directors in connection with the safe and sound operation of the Bank; and

       (c) provisions for periodic training.

   (ii) The education program shall be submitted to the Regional Director and the Commissioner
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   for review and comment. Within 30 days after receipt and consideration of such comments, the board of directors shall implement the education program and shall document the training activities in the minutes of the meetings of the board of directors.

   [.2]2. (a) Within 90 days from the effective date of this ORDER, the Bank shall have Tier 1 capital equal to or greater than seven and one-half percent (7 1/2%) of the Bank's adjusted Part 325 total assets. Thereafter, during the life of this ORDER, the Bank shall maintain Tier 1 capital equal to or greater than seven and one-half percent (7 1/2%) of the Bank's adjusted Part 325 total assets.

   (b) Any increase in Tier 1 capital necessary to meet the ratio required by Paragraph 2(a) of this ORDER may be accomplished by the following:

       (i) The sale of new securities in the form of common stock; or

       (ii) The direct contribution of cash by the directors, shareholders, or parent Bank holding company of the Bank; or

       (iii) Any other method acceptable to the FDIC.

   (c) If all or part of the increase in Tier 1 capital required by Paragraph 2(a) of this ORDER is 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 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 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, Disclosure, & Securities Unit, or its successor unit, 550 17th Street, N.W., Room F-6053, 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 Regional Director allows any part of the increase in Tier 1 capital to be provided by the sale of noncumulative perpetual preferred stock, then all terms and conditions of the issue, including, but not limited to, those terms and conditions relative to the interest rate and any convertibility factor, shall be presented to the Regional Director for prior approval.

   (d) 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 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 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 purposes of this ORDER the terms "Tier 1 capital", and "Part 325 total assets" shall have the meanings ascribed to them in Part 325 of the FDIC's Rules and Regulations, respectively subsections 325.2(t) and 325.2(v), 12 C.F.R. §§ 325.2(t) and (v). The "Capital Calculations" schedule on page 42 of the Report of Examination provides the method for determining the ratio of Tier 1 capital to adjusted Part 325 total assets as required by this ORDER.

   (f) The Bank shall not lend funds directly or indirectly, whether secured or unsecured, to any purchaser of Bank stock or to any investor by any other means for any portion of any increase in Tier 1 capital required herein.

   [.3]3. (a) Within 30 days from the effective date of this ORDER, the Bank shall establish and shall thereafter maintain, through charges to current operating income, an adequate valuation reserve for loan and lease losses. In determining the adequacy of the valuation reserve for loan and lease losses, the board of directors of the Bank shall at a minimum consider the following:

       (i) Prevailing instructions contained in the Federal Financial Institutions Examination Council booklet, entitled "Instructions—Consolidated Reports of Condition and Income";
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       (ii) The volume and mix of the exiting loan portfolio, including the volume and severity of nonperforming loans and adversely classified credits, as well as an analysis of net charge-offs experienced on previously adversely classified loans;

       (iii) The extent to which loan renewals and extensions are used to maintain loans on a current basis and the degree of risk associated with such loans;

       (iv) The trend in loan growth, including any rapid increase in loan volume within a relatively short time period;

       (v) General and local economic conditions affecting the collectibility of the Bank's loans;

       (vi) Previous loan loss experience by loan type, including the trend of net charge-offs as a percent of average loans over the past several years;

       (vii) Off balance sheet credit risks;

       (viii) The overall risk associated with each concentration of credit together with the degree of risk associated with each related individual borrower; and

       (ix) Any other factors appropriate in determining future valuation reserves.

   (b) Prior to the submission of any Report of Condition and Income, the board of directors of the Bank shall review the adequacy of the Bank's valuation reserve for loan and lease losses. The minutes of the board meetings at which each review is undertaken shall indicate the results of the review, the amount of any increase to the reserve, and the basis for the amount of the valuation reserve. The criteria for the review shall be as set forth in Paragraph 3(a).

   (c) Notwithstanding the provisions of Paragraph 3(a) and 3(b) above, the Bank shall achieve, within 30 days of the effective date of this ORDER, a valuation reserve for loan and lease losses, after charge off of loans classified "Loss" as required in Paragraph 5(a) below, of not less than $191,000, and shall thereafter maintain, through charges to current operating income, an adequate valuation reserve for loan and lease losses.

   (d) In the event that the Regional Director and/or the Commissioner determine, at subsequent examinations and/or visitations, that the Bank's valuation reserve for loan and lease losses is inadequate, the Bank shall amend its Consolidated Reports of Condition and Income in accordance with Paragraph 12.

   (e) The requirements of Paragraph 3(c) above are not to be construed as a standard for future operations.

   [.4]4. (a) Within 60 days from the effective date of this ORDER, and within the first 30 days of each calendar year thereafter, the board of directors shall develop a written profit plan consisting of goals and strategies for improving the earnings of the Bank for each calendar year. The 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 on not less than a quarterly basis; and

       (iv) A description of the operating assumptions that form the basis for, and adequately support, major projected income and expense components.

   (b) Such written profit plan and any subsequent modification thereto shall be submitted to the Regional Director and the Commissioner for review and comment. No more than 30 days after the receipt of any comment from the Regional Director and/or the Commissioner, the board of directors shall approve the written profit plan, which approval shall be recorded in the minutes of the board of directors. Thereafter, the Bank, its directors, officers, and employees shall follow the written profit plan and/or any subsequent modification.

   [.5]5. (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" as of December 31, 2001, that have not been previously collected or charged off. Reduction of these assets through proceeds of other loans made by the Bank is not considered collection for the purpose of this paragraph.

   (b) Within 60 days from the effective date of this ORDER, the Bank shall formulate and submit to the Regional Director and the Commissioner for review and approval a written plan of action directed at lessening the Bank's risk position in each line of credit
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   or other asset which was classified "Substandard" as of December 31, 2001, and which aggregated $25,000 or more. Such plan shall include but not be limited to, the following:

       (i) Target dollar levels to which the Bank will reduce each line of credit or other asset within three months, six months, and twelve months from the effective date of this ORDER; and

       (ii) Provisions for the submissions of monthly written progress reports under this Paragraph 5 to the Bank's board of directors for review and recordation in the board minutes.

   (c) As used in Paragraph 5 the word "reduce" means (1) to collect, (2) to charge off, or (3) to sufficiently improve the quality of assets adversely classified to warrant removing any adverse classification, as determined by the FDIC.

   [.6]6. (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 with the Bank that has been charged off or classified, in whole or in part, "Loss" and is uncollected. The requirements of this paragraph shall not prohibit the Bank from renewing (after collection in cash of interest due from the borrower) any credit already extended to any borrower.

   (b) Beginning with the effective date of this ORDER, the Bank shall not make any further extensions of credit, directly or indirectly, to any borrower whose loans are adversely classified "Substandard" as of December 31, 2001, without prior approval by the Bank's board of directors after the board's affirmative determination, as reflected in the minutes of the meeting, that the extension of credit is in full compliance with the Bank's loan policy, that the extension of credit is necessary to protect the Bank's interest or is adequately secured, that credit analysis has determined the customer to be creditworthy, and that all necessary loan documentation is on file, including current financial and cash flow information and satisfactory appraisal, title and lien documents.

   [.7]7. Within 60 days from the effective date of this ORDER, the Bank shall revise, adopt, and implement written lending 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 Commissioner as determined at subsequent examinations and/or visitations.

   [.8]8. (a) Within 30 days of the effective date of this ORDER, the board shall establish a written internal loan review and grading system ("System") to periodically review the Bank's loan portfolio and identify and categorize problem credits. At a minimum the System shall provide for:

       (i) The identification of the overall quality of the loan portfolio;

       (ii) The identification and amount of each delinquent loan;

       (iii) The identification or grouping of loans that warrant the special attention of management;

       (iv) For each loan identified, a statement of the amount and an indication of the degree of risk that the loan will not be fully repaid according to its terms and the reason(s) why the particular loan merits special attention;

       (v) The identification of credit and collateral documentation exceptions;

       (vi) The identification and status of each violation of law, rule or regulation;

       (vii) The identification of loans not in conformance with the Bank's lending policy, and exceptions to the Bank's lending policy;

       (viii) The identification of insider loan transactions;

       (ix) The independence and qualifications of loan review personnel;

       (x) The frequency of reviews;

       (xi) The scope and depth of reviews;

       (xii) The review of findings and follow-up; and

       (xiii) A mechanism for reporting periodically, no less than quarterly, to the board of directors on the status of each loan identified and the action(s) taken by management.

   (b) A copy of the reports submitted to the board, as well as documentation of the action taken by the Bank to collect or strengthen assets identified as problem credits, shall be kept with the minutes of the board of directors.

   (c) Within 60 days from the effective date of this ORDER the Bank's board of directors shall establish and appoint a loan committee to review and approve in advance all
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   extensions of credit, and/or renewals that when aggregated with all other extensions of credit to that borrower, either, directly or indirectly, exceed or would exceed $75,000. The review should include financial, income, and cash flow information, collateral values and lien information, repayment terms, past performance by the borrower, the purpose of the extension, and whether the extension complies with the Bank's loan policy and applicable laws, rules and regulations. The loan committee shall meet at least twice monthly and shall maintain written minutes which detail the information reviewed by the loan committee, its conclusions, approvals, denials, recommendations, and reasons for the approval of any credit which does not fully comply with the review requirements set forth in this paragraph. At least monthly, the loan committee shall submit its written minutes to the board of directors. At least two-thirds of the members of the loan committee shall be independent, outside directors as defined in Paragraph 1(f) of this ORDER.

   [.9]9. Within 180 days from the effective date of this ORDER, the Bank shall reduce each loan concentration as of December 31, 2001, to an amount which shall be less than 25 percent of the Bank's Tier 1 capital for each individual concentration, except that, with respect to the KDR-related extensions of credit listed on pages 32-36 of the FDIC Report of Examination, the amount shall be exclusive of the Small Business Administration guaranteed portion of the KDR-related extensions of credit. In addition, the Bank shall not make any new extensions of credit, directly or indirectly, to any borrower whose loans in the aggregate equal 25 percent or more of the Bank's Tier 1 capital.

   [.10]10. (a) Within 60 days from the effective date of this ORDER, the Bank shall eliminate and/or correct all violations of law and contraventions of policy which are set out on pages 19-24 of the Report of Examination of the Bank as of December 31, 2001. In addition, the Bank shall henceforth comply with all applicable laws and regulations.

   (b) For any violation of law or regulation set out on pages 19-24 of the FDIC Report of Examination of the Bank as of December 31, 2001, the Bank's board of directors shall maintain in its minutes, and include in the appropriate individual credit file, a written record of all actions taken by the Bank to correct such violations of law or regulation, including an express description of any condition that is outside the Bank's control. A copy of such written record shall be provided to the Regional Director and the Commissioner within ten days of its approval by the board of directors, and any written comment provided by the Regional Director or the Commissioner to the Bank's board of directors regarding such record shall be reviewed at its next meeting subsequent to receipt of such comment and made part of the minutes of that board meeting.

   [.11]11. Within 60 days from the effective date of this ORDER, the Bank shall formulate, adopt, and implement written guidelines to conform actual practices to the Bank's interest rate risk policy regarding balance sheet structure, margins on liabilities, and reliance on short-term deposits to fund long-term assets. The written interest rate risk guidelines shall be submitted to the Regional Director and the Commissioner for review and comment.

   [.12]12. (a) Within 30 days from the effective date of this ORDER, the Bank shall review all Consolidated Reports of Condition and Income filed with the FDIC on and after December 31, 2001, and shall amend and file with the FDIC amended Consolidated Reports of Condition and Income which accurately reflect the financial condition of the Bank as of the date of each such Report.

   (b) In addition to the above and 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 reporting period. In particular, such Reports shall include any adjustment in the Bank's books made necessary or appropriate as a consequence of any State or FDIC examination of the Bank during that reporting period.

   [.13]13. While this ORDER is in effect, the Bank shall not declare or pay any cash dividends on its capital stock without the prior written approval of the Regional Director and the Commissioner.

   [.14]14. Following the effective date of this ORDER, the Bank shall send to its shareholders or otherwise furnish a description of this ORDER, (i) in conjunction with the Bank's next shareholder communication, and also (ii) in conjunction with its notice or
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   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, Division of Supervision, Registration, Disclosure, & Securities Unit, or its successor unit, 550 17th Street, N.W., Room F-6043, 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. On the last day of the second month following the effective date of this ORDER, and on the last day of every third month thereafter, the Bank shall furnish written progress reports to the Regional Director and the Commissioner detailing the form and manner of any actions taken to secure compliance with this ORDER and the results thereof. Such reports may be discontinued when the corrections required by this ORDER have been accomplished and the Regional Director and the Commissioner have released the Bank in writing from making further reports.

   The provisions of this ORDER shall be binding upon the Bank, its directors, officers, employees, agents, successors, assigns, and other institution-affiliated parties of the Bank.

   This ORDER shall become effective 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.

   Pursuant to delegated authority.

   Dated: July 5th, 2002.



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