Unassociated Document


    


    UNITED
STATES OF AMERICA

    Before
The

    OFFICE
OF THRIFT SUPERVISION

    


    
      	 
      	 
      	 
      
	
              In
      the Matter of:

            	
              )

            	 
      
	 
      	
              )

            	 
      
	
              TierOne
      Bank

            	
              )

            	
              OTS
      Order No.:  CN 10-14

            
	
              Lincoln,
      Nebraska

            	
              )

            	 
      
	 
      	
              )

            	 
      
	
              OTS
      Docket No.  03309

            	
              )

            	
              Effective
      Date:  March 31, 2010

            
	 
      	
              )

            	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      


    

    PROMPT
CORRECTIVE ACTION DIRECTIVE

    


    WHEREAS, TierOne Bank,
Lincoln, Nebraska (Institution), is a federally chartered savings association
that is regulated by the Office of Thrift Supervision (OTS);

    


    WHEREAS, Section 38 of the
Federal Deposit Insurance Act (FDIA), 12 U.S.C. § 1831o, and Part 565 of the OTS
Regulations, 12 C.F.R. Part 565, require insured depository institutions that
are undercapitalized to file a capital restoration plan specifying the steps the
insured depository institution will take to become at least “adequately
capitalized” and remain “adequately capitalized” for four consecutive
quarters;

    


    WHEREAS, Section 38 of FDIA,
12 U.S.C. § 1831o, requires the OTS to take prompt corrective action to resolve
the problems of insured depository institutions at the least possible long-term
loss to the Deposit Insurance Fund;

    


    WHEREAS, Section 565.7 of the
OTS Regulations, 12 C.F.R. § 565.7, provides for the OTS’s issuance of
directives to take prompt corrective action to resolve the problems of insured
depository institutions and to restore their capital;

    


    WHEREAS, the OTS, on November
13, 2009, notified the Institution that it was “Undercapitalized” for purposes
of the prompt corrective action provisions of Section 38 of FDIA, 12 U.S.C. §
1831o, and was required to submit a Capital Restoration Plan no later than
December 28, 2009;

    


    WHEREAS, the Institution also
is not in compliance with the capital standards required by Section 5(t) of the
Home Owners’ Loan Act (HOLA), 12 U.S.C. § 1464(t);

    


    WHEREAS, Section
5(t)(6)(B)(ii) of HOLA, 12 U.S.C. § 1464(t)(6)(B)(ii), requires any institution
not in compliance with the capital standards to comply with a capital directive
issued by the OTS;


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    WHEREAS, on December 23, 2009,
the OTS received the Institution’s capital restoration plan (Capital Restoration
Plan);

    


    WHEREAS, the OTS issued a
Notice of Intent to Issue this Prompt Corrective Action Directive (PCA
Directive) on February 19, 2010 (Notice of Intent); has considered the
Institution’s response dated March 5, 2010; and has determined to issue this PCA
Directive in order to carry out the purposes of Section 38 of FDIA, 12 U.S.C. §
1831o, and to resolve the Institution’s problems at the least long term cost to
the deposit insurance fund;

    


    WHEREAS, the Institution has
not submitted a Capital Restoration Plan that is acceptable under Section 567.10
of the OTS Regulations, 12 C.F.R. § 567.10, and Section 38(e)(2) of the FDIA, 12
U.S.C. § 1831o(e)(2); and

    


    WHEREAS, the Institution and
its Board of Directors, by execution of the attached Stipulation and Consent
(Stipulation) to the issuance of this PCA Directive, the terms of which are
incorporated herein by this reference, have stipulated and consented to the
issuance of the PCA Directive.

    


    NOW THEREFORE, pursuant to
Section 38 of FDIA, 12 U.S.C. § 1831o, including but not limited to subsection
(f) thereof, Section 5(t)(6)(B)(ii) of HOLA, 12 U.S.C. § 1464(t)(6)(B)(ii), and
Section 565.7 of the OTS Regulations, 12 C.F.R. § 565.7, the OTS directs the
Institution and its Board of Directors to do the following1:

    


    PART
I – IMPROVING CAPITAL

    


    
      	
              Section
      1.1

            	
              Required
      Recapitalization through Merger, Acquisition, or
    Sale.

            


    

    


    Pursuant
to 12 U.S.C. §§ 1831o(f)(2)(A)(iii) and (e)(5), the Institution must be
recapitalized prior to May 31, 2010, by (a) merging with or being acquired by
another financial institution, financial holding company, or other entity2, or (b) the sale of all or
substantially all of the Institution’s assets and liabilities to another
financial institution, financial institution holding company, or other entity,
whereby the resulting depository institution would be at least “adequately
capitalized,” as defined at 12 C.F.R. § 565.4(b), and remain so for four (4)
consecutive quarters. The Institution shall submit a binding merger or
acquisition agreement to the OTS by April 30, 2010, unless extended in writing
by the OTS.  The Institution’s management and Board of Directors shall
take appropriate steps to accomplish such merger, acquisition, or
sale.

     

    
      


    
      1 The OTS
must impose one or more of the presumptive restrictions set forth in 12 U.S.C. §
1831o(f), especially 12 U.S.C. §§ 1831o(f)(3) and (4) if the Institution: (1) is
significantly or critically undercapitalized, (2) is undercapitalized and did
not submit an acceptable capital restoration plan, or (3)  fails to
implement an approved capital restoration plan.

    

    
      2 For
purposes of this PCA Directive, “other entity” may include but is not limited to
an individual, a group of individuals, a partnership, a corporation, or any
other form of business organization that may, under applicable statutes and
regulations, merge with or acquire the Institution or purchase all or
substantially all of its assets and liabilities.

    

     

    
      TierOne
Bank

      Prompt
Corrective Action Directive

      Page 2 of
9


    

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      	
              Section
      1.2

            	
              Efforts to Obtain
      Capital.

            


    

    


    The Board of Directors of the
Institution shall at all times make diligent and good faith efforts to cause the
Institution to become “adequately capitalized.”  The OTS requires this
action pursuant to 12 U.S.C. § 1831o(e)(5) and (f)(2)(J) having determined that
such actions will better carry out the purposes of 12 U.S.C. §
1831o.

    


    
      	
              Section
      1.3

            	
              Prior Notice
      Required.

            


    

    


    (a)  The
Institution and any subsidiary or holding company thereof shall not issue any
securities or enter into any agreement, letter of intent, or understanding to
merge, consolidate, sell all or substantially all of its assets and liabilities,
or otherwise be acquired, or enter into any agreement or understanding to
reorganize unless (i) the Institution has provided the OTS with prior written
notice of its intention to take such action, and (ii) following such notice, the
OTS has provided the Institution with prior written notice of its non-objection
to the proposed action by the Institution.

    


    (b)  The
OTS requires this action pursuant to 12 U.S.C. § 1831o(e)(5) and (f)(2)(J)
having determined that such actions will better carry out the purposes of 12
U.S.C. § 1831o.

    


    
      	
              Section
      1.4

            	
              Ongoing Monitoring of
      Capital Category Required.

            


    

    


    (a)  The
Institution must monitor its own PCA capital ratios and if the Institution
should improve from a lower to a higher PCA capital category, it must continue
to comply with each provision of this PCA Directive except to the extent the
provision shall be modified, terminated, suspended or set aside by the OTS in
writing.

    


    (b)  If
the Institution falls into a lower PCA capital category, it must comply
immediately with the appropriate additional restrictions contained in 12 U.S.C.
§ 1831o and 12 C.F.R. § 565.6.

    


    (c)  The
OTS requires this action pursuant to 12 U.S.C. § 1831o(f)(2)(J) and based
upon a determination by the OTS that such action will better carry out the
purposes of Section 38 of the FDIA.

    


    
      
        	
                Section
      1.5 

              	
                Reports of
      Compliance.

              


      

    

    


    No later
than the close of business on the 20th day of each month following the Effective
Date of this PCA Directive:

    


    (a) The
Institution shall submit to the OTS, in a format acceptable to the OTS, a
summary of actions taken, during the immediately preceding month, by the
Institution and its Board of Directors and executive officers in furtherance of
the Institution’s efforts to become “adequately capitalized.”

     

    TierOne
Bank

    Prompt
Corrective Action Directive

    Page 3 of
9

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    (b)  The
management of the Institution shall prepare a written report concerning the
Institution’s compliance with each of the requirements of this
PCA Directive during the preceding month.  The report shall include
confirmation that the Institution is in compliance with: (i) all restrictions
that apply automatically to an institution that is “Significantly
Undercapitalized” and (ii) with the other restrictions and requirements
contained in this PCA Directive.

    


    (c)  The
Institution shall continue to provide status reports required by Section 1.5
(a)  and (b) until directed otherwise by the Regional
Director.  The OTS requires this action pursuant to 12 U.S.C.
§ 1831o(e)(5) and (f)(2)(J) and based upon a determination by the OTS that
such action will better carry out the purposes of Section 38 of the
FDIA.

    


    
      	
              Section
      1.6

            	
              Adequate
      Progress.

            


    

    


    If the OTS, in its sole discretion,
determines that the Institution is failing to make adequate progress towards
achieving the requirements set forth in Sections 1.1, 1.2, and 1.3 of this PCA
Directive, the OTS may take such further supervisory, enforcement or resolution
action as it deems appropriate.

    


    PART
II - OPERATING RESTRICTIONS

    


    
      	
              Section
      2.1

            	
              Compliance with
      Mandatory Restrictions.

            


    

    


    The Institution shall comply with all
of the mandatory prompt corrective action provisions set forth in 12 U.S.C. §
1831o and 12 C.F.R. § 565.6 that automatically apply to the Institution based
upon the Institution’s prompt corrective action capital category. These
provisions are set forth as follows:

    


    
      	
               
      

            	
              (a)  No
      capital distributions shall be made without the prior written approval of
      the OTS.  12 U.S.C. § 1831o(d)(1); 12 C.F.R. §§ 565.6(a)(1) and
      (a)(2)(i).

            


    

    


    
      	
               
      

            	
              (b)  No
      management fees shall be paid to any person having control of the
      Institution if: (i) the Institution is not adequately capitalized or (ii)
      after making the payment, the Institution would be
      undercapitalized.  12 U.S.C. § 1831o(d)(2); 12 C.F.R. §§
      565.6(a)(1) and (a)(2)(i).

            


    

    


    
      	
               
      

            	
              (c)  The
      Institution shall not permit its average total assets during any calendar
      quarter to exceed its average total assets during the preceding quarter
      unless (i) the OTS has accepted the Institution’s capital restoration
      plan, (ii) the increase in total assets is consistent with the plan, and
      (iii) the Institution’s ratio of tangible equity to assets increases
      during the calendar quarter at a rate sufficient to enable the Institution
      to become adequately capitalized within a reasonable time.  12
      U.S.C. § 1831o(e)(3); 12 C.F.R. §
  565.6(a)(2)(iv).

            


    

    


    
      	
               
      

            	
              (d)  The
      Institution shall not, directly or indirectly, acquire any interest in any
      company or insured depository institution, establish or acquire any
      additional branch office, or engage in any new line of business, unless
      (i) the OTS has accepted the Institution’s capital restoration plan, the
      Institution is in compliance with the plan, and the OTS determines that
      the action is consistent with, and will further achievement of the plan,
      or (ii) the FDIC Board of Directors approves the action.  12
      U.S.C. § 1831o(e)(4); 12 C.F.R. §
  565.6(a)(2)(v).

            


    

    


    TierOne
Bank

    Prompt
Corrective Action Directive

    Page 4
of 9

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    


    
      	
               
      

            	
              (e)  The
      Institution shall not, without the OTS’s prior written approval, (i) pay
      any bonus to any Senior Executive Officer, as that term is defined in 12
      C.F.R. § 563.555, or (ii) provide compensation to any Senior Executive
      Officer exceeding that Officer's average rate of compensation (excluding
      bonuses, stock options, and profit-sharing) during the 12 calendar months
      preceding the calendar month in which the Institution became
      undercapitalized.  12 U.S.C. § 1831o(f)(4); 12 C.F.R. §
      565.6(a)(3).

            


    

    


    
      	
              Section
      2.2

            	
              Affiliate
      Transactions.

            


    

    


    
      	
               
      

            	
              (a)  The
      Institution shall not engage in any new transaction with any subsidiary,
      affiliate or institution-affiliated party, as that term is defined in
      Section 3(u) of the Federal Deposit Insurance Act, 12 U.S.C. § 1813(u),
      without the prior written non-objection of the Regional
      Director.

            


    

    


    
      	
               
      

            	
              (b)  The
      OTS is imposing these restrictions pursuant to 12 U.S.C. §§
      1831o(f)(2)(B)(ii) and (f)(2)(J) based on its determination that the
      restriction is necessary to carry out the purpose of 12 U.S.C. §
      1831o.

            


    

    


    
      
        	
                Section
      2.3 

              	
                Restrictions on
      Activities Posing Excessive
Risk.

              


      

    

    


    The OTS
imposes these restrictions pursuant to 12 U.S.C. §§ 1831o(e)(5), (f)(2)(E), and
(J), having determined that these activities pose excessive risk to the
Institution in view of its current financial condition.  The
Institution, directly or indirectly, shall not do any of the following without
prior written approval from the OTS:

    


    (a)         release
any borrower or guarantor from personal or corporate liability on any loan or
extension of credit granted by the Institution, except when the outstanding
balance of the loan and other outstanding loans to the borrower or guarantor
have been paid in full;

    


    (b)         make
or commit to make any investment in any service corporation, finance subsidiary,
or operating subsidiary, or any subsidiary of a service
corporation;

    


    (c)         enter
into any joint venture or limited partnership agreement, directly or
indirectly;

    


    (d)         engage
in forward commitment (except for firm commitments not exceeding sixty (60) days
for the sale of conforming mortgage loans), futures transaction, or financial
options transaction;

    


    TierOne
Bank

    Prompt
Corrective Action Directive

    Page 5
of 9

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    (e)        enter
into any new contract or agreement for the purchase, sale, or lease of goods,
materials, equipment, supplies, services or capital assets where the amount of
each contract or agreement exceeds twenty-five thousand dollars
($25,000);

    


    (f)         enter
into any renewals or modifications of existing contracts or agreements to be
entered into in the normal course of business where the amount of each contract
or agreement exceeds one hundred thousand dollars ($100,000);

    


    (g)        enter
into any lease or contract for the purchase or sale of real estate or of any
interest therein, except that this restriction does not apply to such contracts
to be entered into in the ordinary course of business for the purchase or sale
of real estate owned due to foreclosure (REO) where the consideration for the
contact does not exceed one million dollars ($1,000,000);

    


    (h)        encumber
any of its property or other assets, except that the Institution may pledge its
assets in connection with borrowings necessary to meet liquidity
needs;

    


    (i)         incur
any material obligation or contingent liability, except as otherwise permitted
by this PCA Directive;

    


    (j)         establish
any loan production office or agency office;

    


    (k)        accept
any non-cash capital contribution;

    


    (l)         accept,
renew, or rollover any deposits not fully insured by the FDIC;

    


    (m)       purchase
any new bank-owned life insurance (BOLI);

    


    (n)        extend
any credit to executive officers, directors, or principal shareholders;
and

    


    (o)        originate
or participate in any loan or line of credit, except for the origination of
owner-occupied, Qualifying Mortgage Loans, as defined in 12 CFR § 567.1,
underwritten in accordance with the criteria established, at the time of loan
origination, for loans:

     

    
      
        	
              	
                (i)

              	
                purchased
      by Federal Home Loan Mortgage Corporation (FHLMC) or Federal National
      Mortgage Association (FNMA);

              


      

       

    

    
      	
               
      

            	
              (ii)

            	
              guaranteed
      by the Department of Veterans Affairs against default (VA Mortgage);
      or

            


    

     

    
      	
               
      

            	
              (iii)

            	
              insured
      by the Federal Housing Administration against default (FHA
      Mortgage).

            


    

     

    For
purposes of complying with this lending restriction, the Institution may: (i)
enter into extensions, refinancings, assumptions or modifications of existing
loans or lines that do not involve the granting of new funds provided that for
any extension, refinancing, assumption, or modification of an existing loan or
line, the Institution shall maintain documentation sufficient to demonstrate
that such a transaction was in the best interest of the Institution; and (ii)
make disbursements pursuant to legally binding commitments made prior to the
Effective Date of this PCA Directive.

    


    TierOne
Bank

    Prompt
Corrective Action Directive

    Page 6
of 9

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    
      	
              Section
      2.4

            	
              Liquidity
      Reporting.

            


    

    


    The
Institution shall submit electronically to the Regional Director or his
authorized representative a liquidity status report each week in a format
acceptable to the Regional Director.  The OTS imposes this requirement
pursuant to 12 U.S.C. §§ 1831o(e)(5) and (f)(2)(J) based on its determination
that the restriction is necessary to carry out the purpose of 12 U.S.C. §
1831o.

    


    PART
III - RELIEF FROM RESTRICTIONS

    


    
      	
              Section
      3.1

            	
              Waiver
      Requests.

            


    

    


    The
Institution may submit written requests to the OTS, requesting the OTS to issue
a notice of non-objection for the purpose of either relieving the Institution
from certain restrictions hereunder or requesting OTS to provide notice of
supervisory non-objection with respect to a particular specifically identified
transaction, loan, or investment.

    


    PART
IV - GENERAL PROVISIONS

    


    
      	
              Section
      4.1

            	
              Jurisdiction.

            


    

    


    This PCA
Directive constitutes a final order under 12 U.S.C. § 1831o and is enforceable
under 12 U.S.C. § 1818(i).

    


    
      	
              Section
      4.2

            	
              Definitions.

            


    

    


    (a)  All
technical words or terms used in this PCA Directive, for which meanings are not
specified or otherwise provided by the provisions of this PCA Directive, shall,
insofar as applicable, have meanings as defined in Chapter V of Title 12 of the
Code of Federal
Regulations, HOLA, FDIA, OTS Bulletins, or OTS Examination
Handbook.  Any such technical words or terms used in this PCA
Directive and undefined in Code of Federal
Regulations, HOLA, FDIA, OTS Bulletins or OTS Examination Handbook shall
have meanings that are in accordance with the best custom and usage in the
savings and loan industry.

    


    (b)  Reference
in this PCA Directive to provisions of statutes and regulations shall be deemed
to include references to all amendments to such provisions as have been made as
of the Effective Date and references to successor provisions as they become
applicable.

    


    (c)  The
term “Effective Date” has the meaning set forth in Section 4.10 of this PCA
Directive.

    


    
      
        	
                Section
      4.3 

              	
                Notices.

              


      

    

    


    Except as
otherwise provided herein, any request, demand, authorization, direction,
notice, consent, waiver or other document provided or permitted by the PCA
Directive to be made upon, given or furnished to, delivered to, or filed with
the OTS or the Institution shall be in writing and sent by first class U.S. mail
(or by reputable overnight courier, electronic facsimile transmission, or hand
delivery via messenger) addressed as follows:

    


    TierOne
Bank

    Prompt
Corrective Action Directive

    Page 7
of 9

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    


    
      
        	
                OTS:

              	
                Regional
      Director

              	 
      
	 
      	
                Office
      of Thrift Supervision

              	 
      
	 
      	
                One
      South Wacker Drive,  Suite 2000

              	 
      
	 
      	
                Chicago,
      Illinois 60606

              	 
      
	 
      	
                Facsimile:
      (312) 917-5001

              	 
      
	 
      	 
      	 
      
	
                Institution:

              	
                Chief
      Executive Officer

              	 
      
	 
      	
                TierOne
      Bank

              	 
      
	 
      	
                1235
      N Street

              	 
      
	 
      	
                Lincoln,
      Nebraska  68508

              	 
      
	 
      	
                Facsimile:
      (402) 435-0427

              	 
      


      

    

    


    
      	
              Section
      4.4

            	
              Duration, Termination
      or Suspension of the PCA
Directive.

            


    

    


    (a)  The
terms and provisions of this PCA Directive shall be binding upon the
Institution, its directors, officers, employees, agents, successors, assigns,
and other persons participating in the affairs of the Institution.

    


    
      	
               
      

            	
              (b)  The
      PCA Directive shall remain in effect until terminated, modified or
      suspended in writing by the OTS.

            


    

    


    (c)  The
OTS, in its discretion, may, by written notice, suspend any or all provisions of
the PCA Directive, except for Section 2.1 (Mandatory Restrictions).

    


    
      	
              Section
      4.5

            	
              Effect of
      Headings.

            


    

    


    The Part
and Section headings herein are for convenience only and shall not affect the
construction hereof.

    


    
      	
              Section
      4.6

            	
              Separability
      Clause.

            


    

    


    In case
any provision in this PCA Directive is ruled to be invalid, illegal or
unenforceable by the decision of any court of competent jurisdiction, the
validity, legality and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby unless the OTS, in its sole
discretion, determines otherwise.

    


    
      	
              Section
      4.7

            	
              No Violations
      Authorized; Consequences of PCA
  Directive.

            


    

    


    Nothing
in this PCA Directive, including, without limitation, any of the timeframes for
actions set forth in Part I, shall be construed as:  (i) allowing the
Institution to violate any law, rule, regulation, or policy statement to which
it is subject or (ii) restricting the OTS from taking such actions as are
appropriate in fulfilling the responsibilities placed upon it by law, including,
without limitation, actions pursuant to 12 U.S.C. § 1831o, or taking any other
type of supervisory, enforcement, or resolution action that the OTS determines
to be appropriate.

    


    TierOne
Bank

    Prompt
Corrective Action Directive

    Page 8
of 9

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    


    
      	
              Section
      4.8

            	
              Other Enforcement
      Document.

            


    

    


    (a)  The
Supervisory Agreement issued against the Institution effective January 15, 2009,
remains in effect.

    


    (b)  Nothing
contained in this PCA Directive shall affect or limit the OTS’s ability to take
enforcement action in connection with any violation of this enforcement
document.

    


    
      	
              Section
      4.9

            	
              Incorporation of
      Stipulation.

            


    

    


    The
Stipulation is made a part hereof and is incorporated herein by this
reference.

    


    
      	
              Section
      4.10

            	
              Effective Date of This
      PCA Directive.

            


    

    


    The
provisions of this PCA Directive are effective immediately upon the issuance of
the PCA Directive by the Regional Director, which is the date indicated on the
first page of this PCA Directive (Effective Date).

    


    


    IT IS SO ORDERED.

    


    OFFICE
OF THRIFT SUPERVISION

    


    


    
      	
               
      

            	
              By:  /s/                                                  

            


    

    Daniel T.
McKee, Regional Director

    Central
Region

    


    


    
      	
               
      

            	
              Date:
      See Effective Date on page 1

            


    

     

     

    
      TierOne
Bank

      Prompt
Corrective Action Directive

      Page 9
of 9