Imperial Credit v. Fdic
Opinion
Opinion
I. FACTS AND PROCEDURAL HISTORY
In February 2002, the FDIC issued a Prompt Corrective Action notice informing SPB that it was undercapitalized and requiring SPB to submit a capital restoration plan by March 6300 IN RE IMPERIAL CREDIT INDUSTRIES 1, 2002, to avoid further restrictions on its activities.1 On March 1, 2002, SPB filed a capital restoration plan (the March 1 capital plan or March 1 plan), which called for it to raise approximately $55 million in new capital through the sale of common equity by June 30, 2002. Pursuant to federal law, on February 27, 2002, SPB’s holding company, Imperial, exe- cuted a corresponding guaranty that SPB would perform under the plan.2 The performance guaranty was attached as an exhibit to SPB’s March 1 capital restoration plan.
The text of the performance guaranty begins with several recitals, including the following:
On February 1, 2002, [SPB]’s Board of Directors received a Prompt Corrective Action notification let- ter from the [FDIC] which, among other things, requires [SPB] to file a written capital restoration plan (the ‘Capital Plan’) with the regional office of the [FDIC] by March 1, 2002 . . . .