{{7-31-91 p.C-384}}
[¶10,077] In the Matter of Arizona Commerce Bank, Tucson, Arizona, Docket No. FDIC-90-100b ( 5-30-90).
Bank to cease and desist from practices such as operating with inadequate equity capital and reserves in relation to quality and volume of assets, with large volume of poor quality loans, with inadequate loan valuation reserve, and so as to produce operating losses. (This order was terminated by order of the FDIC, dated 5-10-91; ¶15,271.)
[.1] Management—Qualifications—Compliance
[.2] Primary Capital—Increase—Methods
[.3] Assets—Adversely Classified—Reduce
[.4] Loan Policy—Minimum Requirements—Review
[.5] Loan Loss Reserve—Adequacy—Review
[.6] Profit Plan—Minimum Requirements—Review
[.7] Shareholders—Dividends—Approvals
[.8] Board of Directors—Compensation
[.9] Shareholders—Disclosure—Cease and Desist Order
[.10] Compliance—Progress Reports—Frequency
{{4-1-90 p.C-385}}
In the Matter of
ARIZONA COMMERCE BANK
TUCSON, ARIZONA
(Insured State Nonmember Bank)
ORDER TO CEASE AND DESIST
Arizona Commerce Bank, Tucson, Arizona ("Bank"), having been advised of its right to a Notice of Charges and of Hearing detailing the unsafe or unsound banking practices 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 May 16, 1990, whereby solely for the purpose of this proceeding and without admitting or denying the alleged charges of unsafe or unsound banking practices, 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. The FDIC, therefore, accepted the CONSENT AGREEMENT and issued the following:
ORDER TO CEASE AND DESIST
IT IS HEREBY ORDERED that the Bank or 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:
(a) operating with inadequate equity capital and reserves in relation to the volume and quality of assets held by the Bank;
(b) operating with a large volume of poor quality loans;
(c) operating with an inadequate loan valuation reserve; and
(d) operating in such a manner as to produce operating losses.
IT IS FURTHER ORDERED that the Bank take affirmative action as follows:
[.1] 1. The Bank shall maintain 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 ability in managing the normal affairs of a Bank of comparable size. Management should also include a senior lending officer with significant appropriate lending, collection, and loan supervision experience and experience 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;
(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.
[.2] 2. (a) Within 180 days from the effective date of this ORDER, the Bank shall increase primary capital by no less than $2,000,000, and shall have adjusted primary capital in such an amount as to equal or exceed eight (8.0) percent of the Bank's adjusted Part 325 total assets. Thereafter, during the life of this ORDER, the Bank shall maintain adjusted primary capital in such an amount as to equal or exceed eight (8.0) percent of the Bank's adjusted Part 325 total assets. Primary capital and Part 325 total assets shall be calculated in accordance with prevailing instructions for the preparation of Reports of Condition. The computation of adjusted primary capital and the ratio of adjusted primary capital to adjusted Part 325 total assets shall be determined by using the procedures outlined in the "Analysis of Capital" schedule in the FDIC Report of Examination.
(b) Any increase in primary capital necessary to meet the requirements of Paragraph 2 of this ORDER may be accomplished by the following:
(i) the sale of common stock; or
{{7-31-92 p.C-386}}
(ii) the sale of perpetual preferred stock; or
(iii) the direct contribution of cash by the board of directors and/or shareholders of the Bank; or
(iv) the collection of assets previously charged off; or
(v) the reduction of the "Loss" and "Doubtful" assets specified in Paragraph 3 of this ORDER without loss or liability to the Bank; or
(vi) any other means acceptable to the Regional Director and the Superintendent; or
(vii) any combination of the above means.
(c) If all or part of the increase in primary 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 Unit, 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 primary capital is provided by the sale of 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.
(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, 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 "primary 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(h) and 325.2(k).
[.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 by charge-off, collection, or by means of a specifically allocated reserve, one-half of the assets classified "Doubtful" as of December 29, 1989, 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 90 days from the effective date of this ORDER, the Bank shall have reduced the assets classified "Substandard" and those assets classified "Doubtful" as of December 29, 1989 that have not previously been charged off to not more than $13,000,000.
(c) Within 180 days from the effective date of this ORDER, the Bank shall have reduced the assets classified "Substandard" and those assets classified "Doubtful" as of December 29, 1989 that have not previously been charged off to not more than $11,000,000.
(d) Within 365 days from the effective date of this ORDER, the Bank shall have reduced the assets classified "Substandard" and those assets classified "Doubtful" as of December 29, 1989 that have not previously been charged off to not more than $7,000,000.
(e) The requirements of subparagraphs 3(a), 3(b), 3(c), 3(d), and 3(e) of this ORDER are not to be construed as standards for future operations and, in addition to the foregoing, the Bank shall eventually reduce
{{7-31-92 p.C-387}}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), and 3(e) the word "reduce" means:
(i) to collect;
(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. During the life of the Order, the Bank shall maintain an adequate written lending and collection policy to provide effective guidance and control over the Bank's lending function, which policy shall include specific guidelines for placing loans on a nonaccrual basis. In addition, the Bank shall obtain adequate and current documentation for all loans in the Bank's loan portfolio. Such policy shall be reviewed annually by the board of directors and revised as necessary, in order that it may continue to provide effective guidance and control over the Bank's lending function.
[.5] 5. Within 10 days from the effective date of this ORDER, the Bank shall establish and thereafter maintain an adequate reserve for loan losses. Such reserve shall be established by charges to current operating income, together with collection of assets previously charged off. In complying with the provisions of this paragraph, the board of directors shall review the adequacy of the Bank's reserve for loan losses prior to the end of each quarter. The minutes of the board of directors meeting at which such review is undertaken shall indicate the results of the review, the amount of any increase in the reserve, and the basis for determination of the amount of the reserve provided.
[.6] 6. Within 60 days from the effective date of this ORDER, the Bank shall formulate and implement a written profit plan. This plan shall be forwarded to the Regional Director and to the Superintendent for review and comment and shall address, at a minimum, the following:
(a) goals and strategies for improving and sustaining the earnings of the Bank, including:
(i) an 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) coordination of the Bank's loan, investment, and operating policies, and budget and profit planning, with the funds management policy.
[.7] 7. The Bank shall not pay cash dividends without the prior written consent of the Regional Director and the Superintendent.
[.8] 8. During the life of this ORDER, the Bank shall not compensate any director for attending board meetings or committee meetings beyond that which was being paid to each director, for board and committee meetings, as of the December 29, 1989 FDIC Report of Examination. Total compensation from the Bank to the directors shall not exceed $75,000 during 1990. For purposes of this ORDER, "compensate" and "compensation" refers to monies, salaries, bonuses, or other benefits of any kind whatsoever, whether paid directly or indirectly.
[.9] 9. 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.
[.10] 10. 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 re-
{{7-31-92 p.C-388}}ports 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 or any "institutionaffiliated party."
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.
Pursuant to delegated authority.
Dated at San Francisco, California, this 30th day of May, 1990.
