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[¶11,894] In the Matter of Pan American Bank, Chicago, Illinois, Docket No.
01-177b (2-6-02).
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 11-7-02; see ¶16,320.)
[.1] Management—Qualifications Specified
[.2] Loans—Extensions of Credit—To Borrowers with Existing Adversely
Classified Credits
[.3] Loans—Risk Position—Written Plan Required
[.4] Loan Committee—Review Policy
[.5] Loans—Concentration of Credit—Reduction Required
[.6] Board of Directors—Review Written Loan Policies
[.7] Technical Exceptions—Correction of Technical Exceptions Required
[.8] Assets—Charge-off or Collection
[.9] Loan Loss Reserve—Establishment of or Increase Required
[.10] Assets—Total Assets, Limitations Imposed on Increase of
[.11] Profit Plan—Preparation of Plan Required
[.12] Bank Operations—New Lines of Business Restricted
[.13] Funds Management and Liquidity—Preparation or Revision of Funds
Management Policy Required
[.14] Audit—Independent Auditors Required
[.15] Capital—Maintain Tier 1 Capital
[.16] Dividends—Dividends Restricted
[.17] Violations of Law—Correction of Violations Required
[.18] Shareholders—Disclosure of Cease and Desist Order Required
[.19] Board of Directors—Program to Review Compliance with Cease and Desist
Order Required
{{1-31-03 p.C-5340}}
In the Matter of
PAN AMERICAN BANK
CHICAGO, ILLINOIS
An Illinois State Chartered
Nonmember Bank
ORDER TO CEASE AND DESIST
No. 2001-BBTC-36
FDIC-01-177b
Pan American Bank, Chicago, Illinois ("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, rule or
regulation alleged to have been committed by the Bank, and of its right
to a hearing on the charges under 38 Ill. Adm. Code, section 392.30,
regarding hearings before the Office of Banks and Real Estate for the
State of Illinois ("OBRE"), and under section 8(b)(1) of the
Federal Deposit Insurance Act (the "FDI 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
(the "STIPULATION") with representatives of OBRE and the Federal
Deposit Insurance Corporation ("FDIC"), dated January 30, 2002,
whereby solely for the purpose of this proceeding and without admitting
or denying the charges of unsafe or unsound banking practices or
violations of law, rule or regulation, consented to the issuance of an
ORDER TO CEASE AND DESIST ("ORDER") by OBRE and the FDIC.
OBRE and the FDIC considered the matter and determined that, based upon
the findings of the examination of the Bank by OBRE and the FDIC dated
June 30, 2001, ("Report of Examination"), there was reason to
believe that the Bank had engaged in unsafe or unsound banking
practices and violations of law, rule or regulation. OBRE and the FDIC,
therefore, accepted the STIPULATION and issued the following:
ORDER TO CEASE AND DESIST
IT IS HEREBY ORDERED, that the Bank, its institution-affiliated
parties, as that term is defined in section 3(u) of the FDI 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
of laws and regulations:
A. Operating with a board of directors that has failed to exercise
adequate supervision over and direction to management.
B. Operating with management whose policies and practices are
detrimental to the Bank and jeopardize the safety of its deposits.
C. Engaging in hazardous lending and lax collection practices,
including, but not limited to:
The failure to obtain proper loan documentation;
The failure to obtain adequate collateral;
The failure to establish and monitor collateral margins of secured
borrowers;
The failure to consider diversification of risk when extending credit;
The failure to establish and enforce adequate loan repayment programs;
The failure to obtain current and complete financial information on
borrowers; and
The failure to follow acceptable credit administration practices.
D. Operating with an excessive volume of adversely classified
assets, loans listed for "Special Mention", delinquent loans, and
nonaccrual loans.
E. Operating with excessive loan losses.
F. Operating with an inadequate allowance for loan and lease losses
("ALLL") for the volume, kind, and quality of loans and leases
held.
G. Operating with negative earnings and without an effective profit
plan.
H. Operating with an inadequate level of capital protection for the
kind and quality of assets held and the overall risk profile of the
Bank.
I. Operating with inadequate liquidity in light of the Bank's asset
and liability mix.
J. Operating with inadequate audit and internal routine and controls.
K. Operating in violation of law and regulation as identified in the
Report of Examination.
IT IS FURTHER ORDERED, that the Bank, its institution-affiliated
parties, and its successors and assigns, take affirmative action as
follows:
[.1]1. (a) Within 45 days from the effective date of this ORDER, the Bank
shall have and retain qualified management. Each member of management
shall have the qualifications and experience commensurate with his or
her duties and responsibilities at the
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Bank. At a minimum, such
management shall include: (1) a president and chief executive officer
with proven ability in managing a bank of comparable size and
experience in upgrading a low-quality loan portfolio; and (2) a senior
lending officer with an appropriate level of lending, collection, and
loan supervision experience for the type and quality of the Bank's
loan portfolio. Such persons shall be provided the necessary written
authority to implement the provisions of this ORDER. 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.
(b) During the life of this ORDER, the Bank shall notify the
Commissioner of OBRE ("Commissioner") and the Regional Director
of the Chicago Regional Office of the FDIC ("Regional Director")
in writing of any changes in any of the Bank's management. For
purposes of this ORDER, management includes any "director," as
defined in section 303.101(a) of the FDIC Rules and Regulations, 12
C.F.R. §303.101(a), and any "senior executive officer," as
defined in section 303.101(b) of the FDIC Rules and Regulations, 12
C.F.R. §303.101(b), including any person identified by the FDIC and
OBRE, whether or not hired as an employee, with significant influence
over, or who participates in, major policy making decisions of the
Bank. Prior to the addition of any director or the employment of any
senior executive officer, the Bank shall comply with the requirements
of section 32 of the FDI Act ("Section 32"), 12 U.S.C.
§1831(i), and Subpart F of Part 303 of the FDIC Rules and
Regulations ("Subpart F"), 12 C.F.R. Part 303, Subpart F. In
addition, prior to the addition of any director or the employment of
any senior executive officer, the Bank shall request and obtain the
written approval of the Commissioner.
[.2]2. (a) As of 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 is already obligated in any manner to the
Bank on any extensions of credit (including any portion thereof) that
has been charged off or classified "Loss" so long as such credit
remains uncollected.
(b) As of 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 whose loan or other credit has been classified
"Substandard" or "Doubtful" in the Report of Examination
and is uncollected unless the Bank's board of directors has adopted,
prior to such extension of credit, a detailed written statement giving
the reasons why such extension of credit is in the best interest of the
Bank. A copy of the statement shall be placed in the appropriate loan
file and shall be incorporated in the minutes of the applicable board
of directors' meeting.
[.3]3. (a) Within 60 days from the effective date of this ORDER, the Bank
shall formulate and submit to the Commissioner and the Regional
Director for review, a written plan to reduce the Bank's risk position
in each asset in excess of $100,000 which is classified
"Substandard" or "Doubtful" in the Report of Examination.
In developing such plan, the Bank shall, at a minimum:
(i) Review the financial position of each such borrower,
including source of repayment, repayment ability, and alternative
repayment sources;
(ii) Evaluate the available collateral for each such credit, including
possible actions to improve the Bank's collateral position;
(iii) Establish dollar levels to which the Bank shall reduce each asset
within six months from the effective date of this ORDER; and
(iv) Provide for the submission of monthly written progress reports to
the Bank's board of directors for review and notation in minutes of
the meetings of the board of directors.
(b) As used in this paragraph, "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 OBRE or the
FDIC.
[.4]4. As of the effective date of this ORDER, the Bank's loan committee
shall meet at least once a month. The loan committee
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shall, at a minimum, perform the following functions:
(a) Evaluate, grant, and/or approve loans in accordance with the
Bank's loan policy amended to comply with this ORDER. The loan
committee shall provide a thorough, written explanation of any
deviations from the loan policy. Such explanation(s) shall address how
said exceptions are in the Bank's best interest, and shall be
reflected in the minutes of the corresponding committee meeting.
(b) Review and monitor the status of repayment and collection of
overdue and maturing loans, as well as all other loans classified
"Substandard" or "Doubtful" in the Report of Examination,
or that are included on the Bank's internal watch list.
(c) Review all applications for new loans and renewals of existing
loans to Bank directors, executive officers, and their related
interests, and prepare a written opinion as to whether the credit is in
conformance with the Bank's loan policy and all applicable laws and
regulations. Such applications, renewals, and written opinions shall be
referred to the Bank's board of directors for consideration.
(d) Maintain a written record of the review and status of the
aforementioned loans. Such record shall be included in the minutes of
the meetings of the Bank's board of directors.
[.5]5. (a) Within 90 days from the effective date of this ORDER, the Bank
shall adopt and implement a written plan to reduce the loan
concentrations of credit identified in the Report of Examination to not
more than 25 percent of the Bank's Tier 1 capital. A copy of the
written plan shall be submitted to the Commissioner and Regional
Director upon completion. Such plan shall prohibit any additional
advances that would increase the concentration or create new
concentrations and shall include, but not be limited to:
(i) Dollar levels to which the Bank shall reduce the
concentration within 6 and 12 months from the effective date of this
ORDER; and
(ii) Provisions for the submission of monthly written progress reports
to the Bank's board of directors for review and notation in minutes of
the meetings of the board of directors.
(b) As used in this paragraph, "reduce" means to: (1)
collect; (2) charge off; or (3) sell or participate portions of
the concentration to other interested buyers outside the Bank.
[.6]6. (a) Within 120 days from the effective date of this ORDER, and
annually thereafter, the board of directors of the Bank shall review
the Bank's loan policy and procedures for adequacy and, based upon
this review, shall make all appropriate revisions to the policy
necessary to strengthen lending procedures and abate additional loan
deterioration. The revised written loan policy and any subsequent
modifications shall be submitted to the Commissioner and the Regional
Director for review.
(b) Revisions to the Bank's loan policy required by this paragraph, at
a minimum, shall include provisions:
(i) Establishing review and monitoring procedures to ensure that
all lending personnel are adhering to established lending procedures
and that the directorate is receiving timely and fully documented
reports on loan activity, including any deviations from established
policy;
(ii) Requiring that all extensions of credit originated or renewed by
the Bank be supported by current credit information and collateral
documentation, including lien searches and the perfection of security
interests; have a clearly defined and stated purpose; and have a
predetermined and realistic repayment source and schedule. Credit
information and collateral documentation shall include current
financial information, profit and loss statements or copies of tax
returns, and cash flow projections, and shall be maintained throughout
the term of the loan with loan officer notations and comments;
(iii) Requiring board of directors' review and monitoring of the
status of repayment and collection of overdue and maturing loans;
(iv) Requiring the maintenance of an effective internal loan watch
list;
(v) Requiring a written plan to lessen the risk position in each line
of credit over $100,000 and identified as a problem credit on the
Bank's internal loan watch list;
(vi) Prohibiting the capitalization of interest, taxes, insurance
premiums, or other loan related expenses unless the board of directors
provides, in writing, a detailed
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explanation of why said deviation is in the best interest of the Bank;
(vii) Requiring a nonaccrual policy in accordance with the Federal
Financial Institutions Examination Council's ("FFIEC")
Instructions for the Consolidated Reports of Condition and Income;
(viii) Establishing standards for extending unsecured credit;
(ix) Establishing limitations on the amount that can be loaned in
relation to established collateral values, including the requirement
that the source of the valuation be identified and that such collateral
valuations be completed prior to the disbursement of loan proceeds, and
be performed on a periodic basis over the term of the loan;
(x) Establishing standards for the institution of collection efforts by
the loan officer or consultant;
(xi) Establishing guidelines for timely recognition of loss through
charge-off;
(xii) Requiring that collateral appraisals be completed prior to the
making of secured extensions of credit. In addition, periodic
collateral valuations shall be performed for all secured loans
identified as a problem credit on the Bank's internal loan watch list;
and
(xiii) Establishing limitations on the maximum volume of loans in
relation to total assets.
[.7]7. (a) Within 90 days from the effective date of this ORDER, the Bank
shall correct the technical exceptions listed in the Report of
Examination.
(b) Within 90 days from the effective date of this ORDER, the Bank
shall correct all deficiencies in the loans listed for "Special
Mention" in the Report of Examination.
[.8]8. As of the effective date of this ORDER, the Bank shall eliminate
from its books, by charge-off or collection, all assets or portions of
assets classified "Loss" in the Report of Examination, that have
not been previously collected or charged off and 50 percent of all
assets classified "Doubtful". Any such charged-off asset shall
not be rebooked without the prior written consent of the Commissioner
and the Regional Director. Elimination or reduction of these assets
with the proceeds of other Bank extensions of credit is not considered
collection for the purpose of this paragraph.
[.9]9. (a) Within 30 days from the effective date of this ORDER, the Bank
shall replenish its ALLL by an expense entry in an amount equal to not
less than $762,000.
(b) Within 90 days from the effective date of this ORDER, Reports of
Condition and Income required by OBRE and the FDIC and filed by the
Bank subsequent to December 31, 2000 shall be amended and refiled if
they do not reflect a provision for loan and lease losses and an ALLL
which are adequate considering the condition of the Bank's loan
portfolio, and which, at a minimum, incorporate any adjustment required
by this paragraph.
(c) Prior to submission or publication of all Reports of Condition and
Income required by OBRE and the FDIC after the effective date of this
ORDER, the board of directors of the Bank shall review the adequacy of
the Bank's ALLL, provide for an adequate ALLL, and accurately report
the same. The minutes of the board meeting at which such review is
undertaken shall indicate the findings of the review, the amount of
increase in the reserve recommended, if any, and the basis for
determination of the amount of ALLL provided. In making these
determinations, the board of directors shall consider the FFIEC's
Instructions for the Reports of Condition and Income and any analysis
of the Bank's ALL provided by OBRE and the FDIC.
(d) ALLL entries required by this paragraph shall be made prior to any
Tier 1 capital determinations required by this ORDER.
[.10]10. During the life of this ORDER, the Bank shall not increase its
total assets by more than 3 percent during any consecutive three-month
period without providing, at least 30 days prior to its implementation,
a growth plan to the Commissioner and the Regional Director. Such
growth plan shall include the funding source to support the projected
growth, as well as the anticipated use of funds. This growth plan shall
not be implemented without the prior written consent of the
Commissioner and the Regional Director. In no event shall the Bank
increase its total assets by more than 10 percent annually. For the
purpose of this paragraph, "total assets" shall be defined as in
the FFIEC's Instructions for the Consolidated Reports of Condition and
Income.
[.11]11. (a) Within 90 days from the effective date of this ORDER, the Bank
shall
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adopt and implement a written profit plan with realistic,
comprehensive budgets for all categories of income and expense for
calendar year 2002. The plan shall contain formal goals and strategies,
consistent with sound banking practices, to reduce discretionary
expenses and to improve the Bank's overall earnings. A copy of the
plan shall be submitted to the Commissioner and the Regional Director
upon its completion.
(b) The written profit plan shall address, at a minimum:
(i) realistic asset growth and margin assumptions;
(ii) realistic core deposit growth projections and strategies
associated therewith;
(iii) realistic funding strategies associated with the use of brokered
deposits that address, among other things, limitations on the total
amount of brokered deposits that the Bank can use in relation to total
deposits, and sufficient documentation to show that the Bank's use of
brokered deposits will have a positive impact upon earnings, liquidity
and interest rate risk;
(iv) maintenance of an adequate ALLL; and
(v) clear assignments of responsibility for implementing these plans.
(c) Within 30 days from the end of each calendar quarter following
completion of the written profit plan required by this paragraph, the
Bank's board of directors shall evaluate the Bank's actual
performance in relation to the plan and budget required by this
paragraph and record the results of the evaluation, and any actions
taken by the Bank, in the minutes of the board of directors' meeting
at which such evaluation is undertaken.
[.12]12. The Bank shall provide 30 days' prior written notice to the
Commissioner and the Regional Director before engaging in any new line
of business in excess of 25% of Tier 1 capital.
[.13]13. Within 90 days from the effective date of this ORDER, the Bank
shall adopt and implement a written plan addressing liquidity and the
Bank's relationship of volatile liabilities to temporary investments.
Annually thereafter during the life of this ORDER, the Bank shall
review this plan for adequacy and, based upon such review, shall make
appropriate revisions in the plan that are necessary to strengthen
funds management procedures and maintain adequate provisions to meet
the Bank's liquidity needs. A copy of the written plan and any
revisions shall be submitted to the Commissioner and the Regional
Director upon its completion. The initial plan shall include, at a
minimum, provisions:
(i) Establishing a desirable range for net non-core funding
dependence ("volatile liability dependency ratio") as defined in
the User's Guide for the Uniform Bank Performance Report;
(ii) Establishing a minimum liquidity ratio and defining how the ratio
is to be calculated;
(iii) Requiring that monthly calculations of the liquidity and
dependency ratios be provided to the board of directors for review,
with such review noted in the board minutes; and
(iv) Identifying the source and use of borrowed and/or volatile
liabilities.
[.14]14. (a) Within 60 days from the effective date of this ORDER, the Bank
shall provide for an external audit of its financial statements and
operating procedures for 2001 to be performed by an independent public
accounting firm whose ownership shall be "independent" as that
term is defined below, and which is acceptable to the Commissioner and
the Regional Director. The final external annual audit for 2000 shall
be obtained at the same time.
(b) The Bank shall immediately allocate the necessary resources to
return the Bank's books and records to a complete and accurate state.
Within 90 days from the effective date of this ORDER, the Bank shall
restore its books and records to a complete and accurate state and
shall continue to maintain accurate books and records thereafter.
(c) For purposes of this ORDER, an individual or entity who is
independent shall be any individual or entity: (a) who is not an
officer of the Bank, any subsidiary of the Bank, any of its affiliated
organizations, or any company or bank controlled by any director of the
Bank; (b) who does not own more than 5 percent of the outstanding
shares of the Bank; (c) who is not related by blood or marriage to an
officer or director of the Bank or to any shareholder owning more than
5 percent of the Bank's outstanding shares, and who does not otherwise
share a common substantial financial interest with such officer,
director or shareholder; or (d) who is not indebted to the Bank.
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[.15]15. (a) Within 90 days from the effective date of this ORDER, the Bank
shall develop and submit to the OBRE and FDIC, a plan to maintain its
Tier 1 leverage capital ratio at a level not less than 8 percent of
total assets.
(b) Within 30 days from the last day of each calendar quarter following
the effective date of this ORDER, the Bank shall determine from its
Report of Condition and Income its level of Tier 1 capital as a
percentage of its total assets ("capital ratio") for that
calendar quarter. If the capital ratio is less than 8 percent, the Bank
shall, within 60 days of the date of the required determination,
increase its capital ratio to not less than 8 percent calculated as of
the end of that preceding quarterly period. For purposes of this ORDER,
Tier 1 capital and total assets shall be calculated in accordance with
Part 325 of the FDIC Rules and Regulations ("Part 325"), 12
C.F.R. Part 325.
(c) Any such increase in Tier 1 capital may be accomplished by the
following:
(i) The sale of common stock or noncumulative perpetual preferred
stock constituting Tier 1 capital under Part 325;
(ii) The elimination of all or part of the assets classified
"Loss" in the Report of Examination without loss or liability to
the Bank, provided any such collection on a partially charged-off asset
shall first be applied to that portion of the asset which was not
charged off previously pursuant to this ORDER;
(iii) The collection in cash of assets previously charged off;
(iv) The direct contribution of cash by the directors and/or the
shareholders of the Bank or its holding company;
(v) Any other means acceptable to the Commissioner and the Regional
Director; or
(vi) Any combination of the above means.
(d) If all or part of the increase in capital required by this
paragraph is to be accomplished by the sale of new securities, the
board of directors of the Bank shall adopt and implement a plan for the
sale of such additional securities, including the voting of any shares
owned or proxies held by or controlled by them in favor of said plan.
Should the implementation of the plan involve public distribution of
the Bank 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 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 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, and to OBRE at 500 E. Monroe Street, Suite 900,
Springfield, Illinois 62701 for review. Any changes requested to be
made in the materials by OBRE or the FDIC shall be made prior to their
dissemination.
(e) In complying with the provisions of this paragraph of the ORDER,
the Bank shall provide to any subscriber and/or purchaser of Bank
securities written notice of any planned or existing development or
other changes that 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 calendar days of the date any material development
or change was planned or occurred, whichever is earlier, and shall be
furnished to every purchaser and/or subscriber of the Bank's original
offering materials.
(f) The capital ratio analysis required by this paragraph shall not
negate the responsibility of the Bank and its board of directors for
maintaining throughout the year an adequate level of capital protection
for the kind, quality and degree of market depreciation of assets held
by the Bank.
[.16]16. As of the effective date of this ORDER, the Bank shall not declare
or pay any cash dividends without the prior written consent of the
Regional Director and Commissioner.
[.17]17. (a) Within 30 days from the effective date of this ORDER, the Bank
shall eliminate or correct all violations of law and/or regulations
listed in the Report of Examination.
(b) Within 30 days from the effective date of this ORDER, the Bank
shall implement
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procedures to ensure future compliance with all
applicable laws and regulations.
[.18]18. Following the effective date of this ORDER, the Bank shall send to
its shareholders or otherwise furnish a description of this ORDER: (1)
in conjunction with the Bank's next shareholder communication; and (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, notice, or statement shall be sent to the FDIC
Registration and Disclosure Section, 550 17th Street, N.W., Washington,
D.C. 20429, and to OBRE, 500 East Monroe, Springfield, Illinois 60601,
for review at least 20 days prior to dissemination to shareholders. Any
changes requested to be made by the FDIC and OBRE shall be made prior
to dissemination of the description, communication, notice, or
statement.
[.19]19. (a) Within 30 days from the effective date of this ORDER, the
Bank's board of directors shall develop, adopt, and implement a
program that will provide for monitoring of the Bank's compliance with
this ORDER.
(b) Following the required date of compliance with subparagraph (a)
above, the Bank's board of directors shall review the Bank's
compliance with this ORDER and record its review in the minutes of each
regularly scheduled monthly board of directors' meeting.
20. Within 30 days of each calendar quarter following the
effective date of this ORDER, the Bank shall furnish to the
Commissioner and the Regional Director written progress reports, signed
by each member of the Bank's board of directors, detailing the form
and manner of any actions taken to secure compliance with this ORDER.
Such reports may be discontinued when the corrections required by this
ORDER have been accomplished and the Commissioner and the Regional
Director have, in writing, released the Bank from making further
reports.
The effective date of this ORDER shall be ten calendar days after
issuance of the ORDER.
The provisions of this ORDER shall be binding upon the Bank, its
institution-affiliated parties, and any successors and assigns thereof.
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 Commissioner and the Regional Director.
Pursuant to delegated authority.
Dated this 6th day of February, 2002.
