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[¶10,733] In the Matter of Lyndonville Savings Bank and Trust Company, Lyndonville, Vermont, Docket No. FDIC-93-44b (3-3-93).
Bank to cease and desist from such unsafe or unsound practices as operating with excessive volumes of adversely classified assets; following hazardous lending and lax collection practices; operating with unacceptable capital; operating in violation of applicable laws or regulations; operating with management whose policies are detrimental to the Bank; operating with inadequate loan documentation; engaging in practices which produce inadequate operating income; failing to provide adequate supervision over the Bank's affairs; operating with inadequate allowance for loan and lease losses; failing to submit Reports of Condition and Income in accordance with instructions; operating with excessive interest rate risk exposure; operating without proper internal routine and controls; and operating with inadequate electronic data processing controls.
[.1] Board of Directors—Election—Outside Directors Added
[.2] Allowance for Loan and Lease Losses—Establish/Maintain
[.3] Capital—Tier 1 Capital—Increase/Maintain—Methods
[.4] Loans—Risk Position—Reduce—Written Plans Required
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[.5] Loan Policy—Written Revision—Minimum Requirements
[.6] Profit Plan—Minimum Requirements
[.7] Dividends—Restricted
[.8] Shareholders—Disclosure—Cease and Desist Order
[.9] Technical Exceptions—Eliminate/Correct
[.10] Violations of Law—Eliminate/Correct
[.11] Bank Operations—Routine and Control Deficiencies—Correct
[.12] Data Processing—Deficiencies—Correct
In the Matter of
LYNDONVILLE SAVINGS BANK
AND
TRUST COMPANY
LYNDONVILLE,VERMONT
(Insured State Nonmember Bank)
ORDER TO CEASE
AND DESIST
FDIC-93-44b
Lyndonville Savings Bank and Trust Company, Lyndonville, Vermont, ("Bank"), having been advised of its right to a Notice of Charges and of Hearing detailing the unsafe or unsound banking practices and violations of law and/or regulations alleged to have been committed by the Bank and of its right to a hearing on such alleged charges under section 8(b)(1) of the Federal Deposit Insurance Act ("Act"), 12 U.S.C. § 1818(b)(1), and having waived those rights, entered into a STIPULATION AND CONSENT TO THE ISSUANCE OF AN ORDER TO CEASE AND DESIST ("CONSENT AGREEMENT") with counsel for the Federal Deposit Insurance Corporation ("FDIC"), dated February 25, 1993, whereby solely for the purpose of this proceeding and without admitting or denying any unsafe or unsound banking practices or 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 HEREBY ORDERED that the Bank and its institution-affiliated parties, as that term is defined in section 3(u) of the Act, 12 U.S.C. § 1813(u), cease and desist from the following unsafe or unsound banking practices and violations of law and/or regulations:
(a) operating with an excessive volume of adversely classified assets;
(b) engaging in hazardous lending including maintaining an excessive volume of adversely classified loans;
(c) operating with unacceptable capital for the kind and quality of assets held;
(d) engaging in violations of applicable laws and regulations;
(e) engaging in management policies and practices which are detrimental to the Bank;
(f) operating with deficient or inadequate loan documentation, including but not limited to current financial statements, appraisal information, and cash flow and/or operating information;
(g) engaging in practices which produce inadequate operating income and excessive loan losses;
(h) failing to provide adequate supervision and direction over the affairs of the Bank to prevent unsafe or unsound practices and violations of law and/or regulations;
(i) operating with an inadequate allowance for loan and lease losses for the volume, kind and quality of loans held;
(j) failing to submit Reports of Conditions and Income in accordance with prevailing instructions;
(k) operating with excessive interest rate risk exposure;
(l) operating without proper internal routine and controls as to vacation policy and expense account reporting by President Lussier and members of the Board of Directors; and
(m) operating with inadequate electronic data processing policies and controls.
IT IS FURTHER ORDERED that the
{{5-31-93 p.C-3081}} Bank and its institution-affiliated parties take affirmative action as follows:
[.1] 1. (a) At the next meeting of the shareholders of the Bank, and at each succeeding meeting of the shareholders at which Bank directors are to be elected, the members of the Board of Directors who are also shareholders shall nominate and support the election of candidates to the Board of Directors who are independent with respect to the Bank, in such number as is necessary to cause, within six months of the date hereof, a majority of the Board of Directors to be and to remain independent with respect to the Bank.
(b) For purposes of this ORDER, an individual who is "independent with respect to the Bank" shall be any individual (1) who is not an officer of the Bank or any of its affiliated organizations and who does not own more than five (5.0) percent of the outstanding shares of the Bank, (2) who is not related by blood, marriage or common financial interest to an officer of the Bank or to any stockholder owning more than five (5.0) percent of the Bank's outstanding shares, and (3) who is not indebted to the Bank, directly or indirectly (including the indebtedness of any entity in which the individual has a substantial financial interest), in an amount exceeding five (5.0) percent of the Bank's total equity capital and allowance for loan and lease losses.
[.2] 2. (a) Within ten (10) days from the effective date of this ORDER, the Bank shall increase its allowance for loan and lease losses ("Reserve") existing as of December 31, 1991 by $5,058,000 at a minimum.
(b) Immediately after complying with paragraph 2(a), the Bank shall eliminate from its books, by charge-off or collection, all assets or portions of assets classified "Loss" and fifty (50.0) percent of all assets or portions thereof, other than extensions of credit or leases classified "Doubtful" in the Report of Examination dated March 2, 1992 ("Examination") which have not been previously collected or charged off. Reduction of these assets through use of proceeds of loans made by the Bank, other than to qualified third party borrowers, does not constitute "collection" or "elimination" for the purpose of this paragraph.
(c) Reports of Condition and Income required to be submitted by the Bank as of each Call Report date, as that term is used in the Instructions, between and including December 31, 1991 and the effective date of this ORDER, shall, at a minimum, reflect a Reserve that should have been maintained in accordance with the Instructions. If necessary to comply with this paragraph 2(c), the Bank shall file amended Reports of Condition and Income within ten (10) days from the effective date of this ORDER.
[.3] 3. (a) (i) Within six (6) months from the effective date of this ORDER, the Bank shall continue to have Tier 1 capital at or in excess of seven (7.0) percent of the Bank's total assets ("Tier 1 leverage capital ratio") and shall continue to maintain its Tier 1 leverage capital ratio at or in excess of such level as calculated herein while this ORDER is in effect.
(ii) For purposes of this ORDER, the terms "Tier 1 capital" and "total assets" shall have the meanings ascribed to them in the revised Part 325 of the FDIC's Rules and Regulations, 12 C.F.R. Part 325, which became effective April 10, 1991.
(b) In calculating the Bank's Tier 1 leverage capital ratio under paragraph 3(a) initially, the Bank shall first comply fully with paragraphs 2(a) and (b) of this ORDER. Thereafter, such ratio and its component parts shall be determined only after the Bank has made such additions to its Reserve so as to bring the Reserve into compliance with the prevailing requirements of the Instructions and charged off any losses identified subsequent to the Examination.
(c) Any increase in the Tier 1 leverage capital ratio made by the Bank in order to meet the requirements of paragraph 3(a) of this ORDER may be accomplished by:
(i) the sale of new offerings of common stock or perpetual preferred stock;
(ii) the direct contribution of cash by the directors of the Bank;
(iii) the collection of all or part of assets classified "Loss" within the Examinations without loss or liability to the Bank. Reductions to loans and leases classified "Loss" shall first be credited
{{5-31-93 p.C-3082}}to the Bank's Reserve and, if the Board of Directors' review of the adequacy of the Reserve required by paragraph 2 of this ORDER indicates that such Reserve has a balance in excess of that required for adequacy, any such excess may be transferred to equity capital through a negative provision to the Reserve;
(iv) the collection in cash of assets previously charged off;
(v) any combination of the above means; or
(vi) any other means acceptable to the Regional Director and the Commissioner.
(d) If the Tier 1 leverage capital ratio specified in paragraph 3(a)(i), declines below seven (7.0) percent, the Bank, within thirty (30) days after the date on which said ratio so declined, shall submit a written capital plan to the Regional Director and the Commissioner for increasing such ratio up to or in excess of seven (7.0) percent within sixty (60) days after the written plan is implemented. The Capital Plan should address both internal and external sources of capital augmentation, including capital infusions, retention of earnings, restrictions of asset growth and asset sales. Thereafter, the Bank shall continue to maintain its Tier 1 leverage capital ratio at or in excess of such level as calculated herein while this ORDER is in effect. Upon approval by the Regional Director and the Commissioner, the Bank shall immediately implement the written plan.
(e) In addition to the requirements of paragraphs 3(a)-(d), the Bank shall comply with the FDIC's Statement of Policy on Risk-Based Capital found in Appendix A to Part 325 of the FDIC Rules and Regulations, 12 C.F.R. Part 325, App. A.
(f) If all or part of any increase in capital made by the Bank in order to meet the requirements of this paragraph 3 involves an offering, other than an offering deemed not to be a public securities offering pursuant to 17 C.F.R. § 230.506 as currently in effect or as hereafter amended, of the Bank's securities (including a distribution limited only to the Bank's existing shareholders), the Bank shall prepare detailed offering materials fully describing the securities being offered, including an accurate description of the financial condition of the Bank and of this ORDER as well as the circumstances giving rise to the offering, and any other material disclosures necessary to comply with the Federal securities laws. Prior to the sale of the securities, and, in any event not less than twenty (20) days prior to the dissemination of such materials, the materials used in the sale of the securities shall be submitted to the FDIC, Registration and Disclosure Section, Washington, D.C. 20429, for review. Any changes requested to be made in the materials by the FDIC shall be made prior to their dissemination.
(g) In complying with the provisions of paragraph 3(f) of this ORDER, the Bank shall provide to any subscriber and/or purchaser of Bank stock, written notice of any planned or existing development or other change which is materially different from the information reflected in any offering materials used in connection with the sale of Bank securities. The written notice required by this paragraph 3(g) shall be furnished within ten (10) calendar days from the date such material development or change was planned or occurred, whichever is earlier, to every purchaser and/or subscriber of Bank stock who received or was tendered the information contained in the Bank's original offering materials.
(h) The Bank's Board of Directors shall maintain in its minutes a written record of all actions taken by the Bank to comply with the capital requirements of paragraphs 3(a) through 3(g) of this ORDER, including, at a minimum, any action to increase its Tier 1 capital by each of the methods specified in paragraphs 3(c)(i) through 3(c)(vi) of this ORDER.
[.4] 4. (a) Within sixty (60) days from the effective date of this ORDER, the Board of Directors shall develop a written plan of action to lessen the Bank's risk position with respect to each borrower who or which had outstanding principal debt owing to the Bank in excess of $100,000 and each parcel of other real estate with book value in excess of $100,000 which was classified "Substandard" or "Doubtful," in whole or in part, as of March 2, 1992. The Bank shall add to its written plan of action loans and other real estate in excess of $100,000 which are so classified in any subsequent examination. In developing such plan, the Bank shall, at a minimum:
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(i) in the case of loans review the financial position of each such borrower, including source of repayment, repayment ability, and alternative repayment sources; and
(ii) evaluate the available collateral for each such credit, including possible actions to improve the Bank's collateral position; and
(iii) in the case of other real estate evaluate the property and provide cost/ benefit analyses of holding the property versus current liquidation value.
Based upon such review and evaluation, the written plan of action shall: (A) within six (6) and twelve (12) months from the effective date of this ORDER, establish target dollar levels to which the Bank shall reduce the aggregate dollar volume of "Substandard" or "Doubtful" classifications as of March 2, 1992 as well as any additional assets that are in need of criticism according to internal Bank review; and (B) provide for the submission of written monthly progress reports to the Bank's Board of Directors for review and notation in the minutes of the Board of Directors. Exhibit A provides the form for the progress report. As used in this paragraph 4, "reduce" means to (1) collect, (2) charge off, or (3) improve the quality of such assets so as to warrant removal of any adverse classification by the FDIC and the Vermont Department of Banking, Insurance, and Securities. Payment of loans with the proceeds of the other loans made by the Bank, other than loans to qualified third party borrowers, will not constitute "reduction" or "collection" for purposes of this paragraph.
(b) The written plan of action described by paragraph 4(a) shall be submitted to the Regional Director and the Commissioner for review and comment within sixty (60) days from the effective date of this ORDER. No sooner than thirty (30) days, but under no circumstances more than sixty (60) days after such submission, the Board of Directors shall approve the written plan of action, taking into consideration any regulatory comments, and such approval shall be recorded in the minutes of the Board of Directors. Subsequent modifications to the written plan may be made only after giving the Regional Director and the Commissioner written notice of the proposed modification, and after consideration of any responsive comments submitted by the Regional Director and the Commissioner within thirty (30) days from their receipt of the notice of proposed modification. No such modification shall become effective until approved by the Board of Directors, and such approval shall be recorded in the minutes of the Board of Directors. The Bank, its directors, officers and employees shall follow the written plan of action and/or any subsequent modification thereto.
[.5] 5. Within sixty (60) days from the effective date of this ORDER, the Bank shall revise its written loan policy to address the criticisms noted in the Examination. The revised written loan policy shall be submitted to the Regional Director and the Commissioner for review and comment within such sixty-day period. No sooner than thirty (30) days, but under no circumstances more than sixty (60) days after such submission, the Board of Directors shall approve the revised written loan policy, taking into consideration any regulatory comments, and such approval shall be recorded in the minutes of the Board of Directors. Subsequent modifications to the revised written loan policy may be made only after giving the Regional Director and the Commissioner written notice of the proposed modification, and after consideration of any responsive comments submitted by the Regional Director and the Commissioner within thirty (30) days from their receipt of the notice of proposed modification. No such modification shall become effective until approved by the Board of Directors, and such approval shall be recorded in the minutes of the Board of Directors. The Bank, its directors, officers, and employees shall follow the revised written loan policy and/or any subsequent modification thereto.
[.6] 6. (a) Within ninety (90) days from the effective date of this ORDER, the Bank shall develop a written profit plan consisting of goals and strategies for improving the earnings of the Bank, which written profit plan shall include, at a minimum:
(i) identification of the major areas in, and means by, which the Board of Directors will seek to improve the Bank's operating performance;
(ii) realistic and comprehensive budgets;
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(iii) a budget review process to monitor the income and expenses of the Bank to compare actual figures with budgetary projections; and
(iv) a description of the operating assumptions that form the basis for, and adequately support, major projected income and expense components.
(b) The written profit plan shall be submitted to the Regional Director and the Commissioner for review and comment within ninety (90) days from the effective date of this ORDER. No sooner than thirty (30) days, but under no circumstances more than sixty (60) days after such submission, the Board of Directors shall approve the written profit plan, taking into consideration any regulatory comments, and such approval shall be recorded in the minutes of the Board of Directors. Subsequent modifications to the written profit plan may be made only after giving the Regional Director and the Commissioner written notice of the proposed modification, and after consideration of any responsive comments submitted by the Regional Director and the Commissioner within thirty (30) days from their receipt of the notice of proposed modification. No such modification shall become effective until approved by the Board of Directors, and such approval shall be recorded in the minutes of the Board of Directors. The Bank, its directors, officers, and employees shall follow the written profit plan and/or any subsequent modification thereto.
[.7] 7. The Bank shall not pay or declare any dividends without the prior written consent of the Regional Director and the Commissioner, which consent shall not be unreasonably withheld.
[.8] 8. Following the effective date of this ORDER, the Bank shall send to its shareholders a description of this ORDER, (1) in conjunction with the Bank's next general 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 Section, Washington, D.C. 24029, for review at least twenty (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.
[.9] 9. (a) Within sixty (60) days from the effective date of this ORDER, the Bank shall correct the remediable technical exceptions on loans noted on page 2-d of the Examination.
(b) Within sixty (60) days from the effective date of this ORDER, the Bank shall revise its plan to reduce all concentrations as noted on page 2-b of the Examination to less than twenty-five (25.0) percent of the Bank's Tier 1 capital.
[.10] 10. Within sixty (60) days from the effective date of this ORDER, the Bank shall eliminate and/or correct all apparent violations of law and regulations committed by the Bank as described on pages 6-a through 6-a-2 of the Examination.
[.11] 11. Within sixty (60) days from the effective date of this ORDER, the Bank shall eliminate and/or correct all internal routine and control deficiencies as described on pages 6-b through 6-b-1 of the Examination.
[.12] 12. Within ninety (90) days from the effective date of this ORDER, the Bank shall correct all Electronic Data Processing deficiencies noted in the June 9, 1992 Electronic Data Processing examination.
13. Within thirty (30) days from the effective date of this ORDER, and, thereafter, within thirty (30) days from the end of each calendar quarter, the Bank shall furnish written progress reports to the Regional Director and the Commissioner detailing the form and manner of any action taken to secure compliance with this ORDER and the results thereof. In addition, the Bank shall furnish such reports on request of either the Regional Director or the Commissioner. All progress reports and other written responses to this ORDER shall be reviewed by the Board of Directors of the Bank and made a part of the minutes of the Board meeting.
14. Notwithstanding anything to the contrary contained herein, in the event of a conflict between the provisions of this ORDER, and the ORDER dated February 13, 1992, the provisions of this ORDER shall govern.
This ORDER shall become effective ten (10) days from the date of its issuance.
The provisions of this ORDER shall be binding upon the Bank and its institution-affiliated parties.
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This ORDER has been reviewed and concurred in by the Commissioner.
The provisions of this ORDER shall remain effective and enforceable except to the extent that, and until such time as, any provisions of this ORDER shall have been modified, terminated, suspended, or set aside by the FDIC.
Dated at Westwood, Massachusetts this 3rd day of March, 1993.
Pursuant to delegated authority.
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