Common use of CAPITAL PLAN AND HIGHER MINIMUMS Clause in Contracts

CAPITAL PLAN AND HIGHER MINIMUMS. (1) The Bank shall maintain the following capital levels (as defined in 12 C.F.R. Part 3): (a) Total Risk Based capital at least equal to fourteen percent (14%) of risk- weighted assets; (b) Tier 1 capital at least equal to nine percent (9%) of adjusted total assets.1 (2) The requirement in this Agreement to maintain a specific capital level means that the Bank may not be deemed to be “well capitalized” for purposes of 12 U.S.C. § 1831o and 12 C.F.R. Part 6 pursuant to 12 C.F.R. § 6.4(b)(1)(iv). (3) Within sixty (60) days, the Board shall develop, implement, and thereafter ensure Bank adherence to a three year capital program. The program shall include: (a) specific plans for the maintenance of adequate capital that may in no event be less than the requirements of paragraph (1); 1 Adjusted total assets is defined in 12 C.F.R. § 3.2(a) as the average total asset figure used for Call Report purposes minus end-of-quarter intangible assets. (b) projections for growth and capital requirements based upon a detailed analysis of the Bank's assets, liabilities, earnings, fixed assets, and off- balance sheet activities; (c) projections of the sources and timing of additional capital to meet the Bank's current and future needs; (d) the primary source(s) from which the Bank will strengthen its capital structure to meet the Bank's needs; (e) contingency plans that identify alternative methods should the primary source(s) under (d) above not be available; and (f) a dividend policy that permits the declaration of a dividend only: (i) when the Bank is in compliance with its approved capital program; (ii) when the Bank is in compliance with 12 U.S.C. §§ 56 and 60; and (iii) with prior written notice to the Assistant Deputy Comptroller. Upon receiving notice from the Assistant Deputy Comptroller, the Bank shall implement and adhere to the dividend policy. (4) Upon completion, the Bank's capital program shall be submitted to the Assistant Deputy Comptroller for prior determination of no supervisory objection. Upon receiving a determination of no supervisory objection from the Assistant Deputy Comptroller, the Bank shall implement and adhere to the capital program. The Board shall review and update the Bank's capital program on an annual basis, or more frequently if necessary. Copies of the reviews and updates shall be submitted to the Assistant Deputy Comptroller. (5) The Board shall ensure that the Bank has processes, personnel, and control systems to ensure implementation of and adherence to the program developed pursuant to this Article.

CAPITAL PLAN AND HIGHER MINIMUMS. (1) The Effective immediately, the Bank shall maintain the following capital levels (as defined in 12 C.F.R. Part 3167): (a) Total Risk Based risk based capital at least equal to fourteen twelve percent (1412%) of risk- weighted assets; (b) Tier 1 (core) capital at least equal to nine eight percent (98%) of adjusted total assets.1assets.3 3 Adjusted total assets is defined in 12 C.F.R. § 167.1. (2) The requirement in this Agreement to meet and maintain a specific capital level means that the Bank may not be deemed to be “well capitalized” for purposes of 12 U.S.C. § 1831o and 12 C.F.R. Part 6 165 pursuant to 12 C.F.R. § 6.4(b)(1)(iv165.4(b)(1)(iv). (3) Within sixty (60) daysNo later than October 31, 2011, the Board shall develop, implement, and thereafter ensure Bank adherence to a three year capital program. The program shall include: (a) specific plans for the maintenance of adequate capital that may in no event be less than the requirements of paragraph (1); 1 Adjusted total assets is defined in 12 C.F.R. § 3.2(a) as the average total asset figure used for Call Report purposes minus end-of-quarter intangible assets.; (b) specific plans for capping and/or reducing compensation to address capital needs to ensure compliance with the requirements of paragraph (1); (c) projections for growth and capital requirements based upon a detailed analysis of the Bank's assets, liabilities, earnings, and fixed assets, and off- balance sheet activities; (cd) projections of the sources and timing of additional capital to meet the Bank's current and future needs; (de) the primary source(s) from which the Bank will strengthen its capital structure to meet the Bank's needs;; and (ef) contingency plans that identify alternative methods should the primary source(s) under (d) above not be available; and (f) a dividend policy that permits the declaration of a dividend only: (i) when the Bank is in compliance with its approved capital program; (ii) when the Bank is in compliance with 12 U.S.C. §§ 56 and 60; and (iii) with prior written notice to the Assistant Deputy Comptroller. Upon receiving notice from the Assistant Deputy Comptroller, the Bank shall implement and adhere to the dividend policy. (4) Upon completion, the Bank's capital program shall be submitted to the Assistant Deputy Comptroller for prior determination of no supervisory objection. Upon receiving a determination of no supervisory objection from the Assistant Deputy Comptroller, the Bank shall implement and adhere to the capital program. The Board shall review and update the Bank's capital program on an annual basis, or more frequently if necessary. Copies of the reviews and updates shall be submitted to the Assistant Deputy Comptroller. (5) The Board shall ensure that the Bank has processes, personnel, and control systems to ensure implementation of and adherence to the program developed pursuant to this Article.

CAPITAL PLAN AND HIGHER MINIMUMS. (1) The Bank shall achieve by March 31, 2005 and thereafter maintain the following capital levels (as defined in 12 C.F.R. Part 3): (a) Total Risk Based Tier 1 capital at least equal to fourteen thirteen percent (1413%) of risk- risk-weighted assets;; and (b) Tier 1 capital at least equal to nine seven and one half percent (97.5%) of adjusted total assets.1assets. (2) The requirement in this Agreement to maintain a specific capital level means that the Bank may not be deemed to be “well capitalized” for purposes of 12 U.S.C. § 1831o and 12 C.F.R. Part 6 pursuant to 12 C.F.R. § 6.4(b)(1)(iv). Within ninety (3) Within sixty (6090) days, the Board shall develop, implement, and thereafter ensure Bank adherence to a three year capital program. The program should reflect the bank’s strategic plans and shall include: (a) specific plans for the maintenance of adequate capital that may in no event be less than the requirements of paragraph (1); 1 Adjusted total assets is defined in 12 C.F.R. § 3.2(a) as the average total asset figure used including targeted minimums for Call Report purposes minus end-of-quarter intangible assets.Tier One Leverage, Tier One Risk Based Capital and Total Risk Based Capital; (b) projections for growth and capital requirements based upon a detailed analysis of the Bank's ’s assets, liabilities, earnings, fixed assets, and off- off-balance sheet activities; (c) projections of the sources and timing of additional capital to meet the Bank's ’s current and future needs, if needed; (d) the primary source(s) from which the Bank will strengthen its capital structure to meet the Bank's needs; (e) contingency plans that identify alternative methods should the primary source(s) under (d) above not be available; andmethods; (fe) a dividend policy that permits the declaration of a dividend only: (i) when the Bank is in compliance with its approved capital program; (ii) when the Bank is in compliance with 12 U.S.C. §§ 56 and 60; and (iii) with the prior written notice to the Assistant Deputy Comptroller. Upon receiving notice from determination of no supervisory objection by the Assistant Deputy Comptroller, the Bank provided however, that this restriction shall implement and adhere not be applicable to dividend payments to the dividend policyBank's parent company in an amount necessary to service the debt associated with a trust preferred issuance, the terms and conditions of which shall be submitted to the OCC for prior review, issued to satisfy the requirements of Article VIII, paragraph 1 of this Agreement. (43) Upon completion, the Bank's ’s capital program shall be submitted to the Assistant Deputy Comptroller for review and prior determination of no supervisory objection. . (4) Upon receiving a determination of no supervisory objection from approval by the Assistant Deputy Comptroller, the Bank shall implement and adhere to the capital program. The Board shall review and update the Bank's ’s capital program on an annual basis, or more frequently if necessary. Copies of the reviews and updates shall be submitted to the Assistant Deputy Comptroller. (5) The Board shall ensure that the Bank has processes, personnel, and control systems to ensure implementation of and adherence to the program developed pursuant to this Article.

CAPITAL PLAN AND HIGHER MINIMUMS. (1) The Bank shall achieve by December 31, 2004 and thereafter maintain the following capital levels (as defined in 12 C.F.R. Part 3): (a) Total Risk Based Tier 1 capital at least equal to fourteen thirteen percent (1413%) of risk- risk-weighted assets;; and (b) Tier 1 capital at least equal to nine seven and one half percent (97.5%) of adjusted total assets.1assets. (2) The requirement in this Agreement to maintain a specific capital level means that the Bank may not be deemed to be “well capitalized” for purposes of 12 U.S.C. § 1831o and 12 C.F.R. Part 6 pursuant to 12 C.F.R. § 6.4(b)(1)(iv). Within ninety (3) Within sixty (6090) days, the Board shall develop, implement, and thereafter ensure Bank adherence to a three year capital program. The program should reflect the bank’s strategic plans and shall include: (a) specific plans for the maintenance of adequate capital that may in no event be less than the requirements of paragraph (1); 1 Adjusted total assets is defined in 12 C.F.R. § 3.2(a) as the average total asset figure used including targeted minimums for Call Report purposes minus end-of-quarter intangible assets.Tier One Leverage, Tier One Risk Based Capital and Total Risk Based Capital; (b) projections for growth and capital requirements based upon a detailed analysis of the Bank's ’s assets, liabilities, earnings, fixed assets, and off- off-balance sheet activities; (c) projections of the sources and timing of additional capital to meet the Bank's ’s current and future needs, if needed; (d) the primary source(s) from which the Bank will strengthen its capital structure to meet the Bank's needs; (e) contingency plans that identify alternative methods should the primary source(s) under (d) above not be available; andmethods; (fe) a dividend policy that permits the declaration of a dividend only: (i) when the Bank is in compliance with its approved capital program; (ii) when the Bank is in compliance with 12 U.S.C. §§ 56 and 60; and (iii) with the prior written notice to the Assistant Deputy Comptroller. Upon receiving notice from determination of no supervisory objection by the Assistant Deputy Comptroller, the Bank provided however, that this restriction shall implement and adhere not be applicable to dividend payments to the dividend policyBank’s parent company in an amount necessary to service the debt associated with a trust preferred issuance, the terms and conditions of which shall be submitted to the OCC for prior review, issued to satisfy the requirements of Article VIII, paragraph 1 of this Agreement. (43) Upon completion, the Bank's ’s capital program shall be submitted to the Assistant Deputy Comptroller for review and prior determination of no supervisory objection. . (4) Upon receiving a determination of no supervisory objection from approval by the Assistant Deputy Comptroller, the Bank shall implement and adhere to the capital program. The Board shall review and update the Bank's ’s capital program on an annual basis, or more frequently if necessary. Copies of the reviews and updates shall be submitted to the Assistant Deputy Comptroller. (5) The Board shall ensure that the Bank has processes, personnel, and control systems to ensure implementation of and adherence to the program developed pursuant to this Article.

CAPITAL PLAN AND HIGHER MINIMUMS. (1) The Bank shall maintain the following capital levels (as defined in 12 C.F.R. Part 3): (a) Total Risk Based capital at least equal to fourteen percent (14%) of risk- weighted assets; (b) Tier 1 capital at least equal to nine percent (9%) of adjusted total assets.1 (2) The requirement in this Agreement to maintain a specific capital level means that the Bank may not be deemed to be “well capitalized” for purposes of 12 U.S.C. § 1831o and 12 C.F.R. Part 6 pursuant to 12 C.F.R. § 6.4(b)(1)(iv). (3) Within sixty (60) days, the Board shall develop, implement, and thereafter ensure Bank adherence to a three year capital program. The program shall include: (a) specific plans for the maintenance of adequate capital that that, within one hundred and twenty (120) days, may in no event be less than the requirements of paragraph following capital levels (1); 1 Adjusted total assets is as defined in 12 C.F.R. § 3.2(aPart 3): (i) as the average Tier 1 capital at least equal to twelve percent (12 %) of risk-weighted assets; (ii) Tier 1 capital at least equal to eight percent (8 %) of adjusted total asset figure used for Call Report purposes minus end-of-quarter intangible assets.assets.1 (b) projections for growth and capital requirements based upon a detailed analysis of the Bank's assets, liabilities, earnings, fixed assets, and off- off-balance sheet activities; (c) projections of the sources and timing of additional capital to meet the Bank's current and future needs; (d) the primary source(s) from which the Bank will strengthen its capital structure to meet the Bank's needs; (e) contingency plans that identify alternative methods should the primary source(s) under (d) above not be available; and (f) a dividend policy that permits the declaration of a dividend only: (i) when the Bank is in compliance with its approved capital program; (ii) when the Bank is in compliance with 12 U.S.C. §§ 56 and 60; and (iii) with prior written notice to the Assistant Deputy Comptroller. Upon receiving notice from the Assistant Deputy Comptroller, the Bank shall implement and adhere to the dividend policy. (42) Upon completion, the Bank's capital program shall be submitted to the Assistant Deputy Comptroller for prior determination of no supervisory objectionapproval. Upon receiving a determination of no supervisory objection from approval by the Assistant Deputy Comptroller, the Bank shall implement and adhere to the capital program. The Board shall review and update the Bank's capital program on an annual basis, or more frequently if necessary. Copies of the reviews and updates shall be submitted to the Assistant Deputy Comptroller. (53) The Board shall ensure that the Bank has processes, personnel, and control systems to ensure implementation of and adherence to the program developed pursuant to this Article.

CAPITAL PLAN AND HIGHER MINIMUMS. (1) The Bank shall maintain the following capital levels (as defined in 12 C.F.R. Part 3): (a) Total Risk Based capital at least equal to fourteen twelve percent (1412%) of risk- risk-weighted assets; (b) Tier 1 capital at least equal to nine percent (9%) of adjusted total assets.1assets. (2) The requirement in this Agreement to meet and maintain a specific capital level means that the Bank may not be deemed to be “well capitalized” for purposes of 12 U.S.C. § 1831o and 12 C.F.R. Part 6 pursuant to 12 C.F.R. § 6.4(b)(1)(iv). (3) Within sixty thirty (6030) days, the Board shall develop, implement, and thereafter ensure Bank adherence to a three year capital programCapital Plan. The program Capital Plan shall include: (a) specific plans for the maintenance of adequate capital that may in no event be less than the requirements of paragraph (1); 1 Adjusted total assets is defined in 12 C.F.R. § 3.2(a) as the average total asset figure used for Call Report purposes minus end-of-quarter intangible assets.of this Article; (b) projections for growth and capital requirements based upon a detailed analysis of the Bank's assets, liabilities, earnings, fixed assets, and off- off-balance sheet assets and activities; (c) projections of the sources and timing of additional capital and/or projections of the methods and timing of reducing assets to meet the Bank's current and future needsrequirements of paragraph (1) of this Article; (d) identification of the primary source(s) from which the Bank will strengthen its capital structure to meet the Bank's needs;requirements of paragraph (1) of this Article; and (e) contingency plans that identify alternative methods source(s) from which the Bank will strengthen its capital structure should the primary source(s) under (d) above not be available; and (f) a dividend policy that permits the declaration of a dividend only: (i) when the Bank is in compliance with its approved capital program; (ii) when the Bank is in compliance with 12 U.S.C. §§ 56 and 60; and (iii) with prior written notice to the Assistant Deputy Comptroller. Upon receiving notice from the Assistant Deputy Comptroller, the Bank shall implement and adhere to the dividend policy. (4) Upon Immediately upon completion, the Bank's capital program Capital Plan shall be submitted to the Assistant Deputy Comptroller for review and prior written determination of no supervisory objection. Upon receiving a determination of no supervisory objection from the Assistant Deputy Comptroller, the Bank shall immediately implement and adhere to the capital program. Capital Plan. (5) The Board shall review and update the Bank's capital program Capital Plan on an annual basis, or more frequently if necessary. Copies of Prior to adoption by the reviews and updates Board, any subsequent amendments or revisions to the Capital Plan shall be submitted to the Assistant Deputy Comptroller for review and prior written determination of no supervisory objection. Upon receiving a determination of no supervisory objection from the Assistant Deputy Comptroller, the Bank shall immediately implement and adhere to the Capital Plan, as amended or revised. (6) The Bank shall not declare any dividend without the prior written determination of no supervisory objection from the Assistant Deputy Comptroller. (57) The Board shall ensure that the Bank has processes, personnel, and control systems to ensure implementation of and adherence to the program Capital Plan developed pursuant to this Article. (8) If the OCC determines, in its sole judgment, that the Bank has failed to meet the minimum capital levels established in paragraph (1) of this Article, has failed to submit an acceptable Capital Plan as required by paragraph (4) of this Article, or has failed to implement or adhere to a Capital Plan for which the OCC has taken no supervisory objection pursuant to paragraphs (4) or (5) of this Article, then, within thirty (30) days of receiving written notice from the OCC of such fact, the Board shall develop and shall submit to the OCC for its review and prior written determination of no supervisory objection a Disposition Plan, which shall detail the Board’s proposal to sell or merge the Bank, or liquidate the Bank under 12 U.S.C. § 181. (9) In the event that the Disposition Plan submitted by the Board outlines a sale or merger of the Bank, the Disposition Plan, at a minimum, shall address the steps that will be taken and the associated timeline to ensure that a definitive agreement for the sale or merger is executed not later than ninety (90) days after the receipt of the Assistant Deputy Comptroller’s written determination of no supervisory objection to the Disposition Plan. If the Disposition Plan outlines a liquidation of the Bank, the Disposition Plan shall detail the actions and steps necessary to accomplish the liquidation in conformance with 12 U.S.C. §§ 181 and 182, and the dates by which each step of the liquidation shall be completed, including the date by which the Bank will terminate the national bank charter. In the event of liquidation, the Bank shall hold a shareholder vote pursuant to 12 U.S.C. § 181, and commence liquidation, within thirty (30) days of receiving the Assistant Deputy Comptroller’s written determination of no supervisory objection to the Disposition Plan. (10) After the OCC has advised the Bank in writing that it does not take supervisory objection to the Disposition Plan, the Board shall immediately implement, and shall thereafter ensure adherence to, the terms of the Disposition Plan. Failure to submit a timely, acceptable Disposition Plan, or failure to implement and adhere to the Disposition Plan after the Board obtains a written determination of no supervisory objection from the Assistant Deputy Comptroller, may be deemed a violation of this Order, in the exercise of the OCC’s sole discretion. (2) A new Article VIII shall be added to the Agreement as follows:

CAPITAL PLAN AND HIGHER MINIMUMS. (1) The Bank shall maintain the following maintains Tier 1 capital levels (as defined in 12 C.F.R. Part 3): (a) Total Risk Based capital at least equal to fourteen seven percent (147%) of risk- weighted assets; (b) Tier 1 capital at least equal to nine percent (9%) of total adjusted total assets.1 (2) The requirement in this Agreement to maintain a specific capital level means that the Bank may not be deemed to be “well capitalized” for purposes of 12 U.S.C. § 1831o and 12 C.F.R. Part 6 pursuant to 12 C.F.R. § 6.4(b)(1)(iv). 1 Adjusted total assets is defined in 12 C.F.R. § 3.2(a) as the average total asset figure used for Call Report purposes minus end-of-quarter intangible assets. As further noted in 12 C.F.R. § 3.2(a), a bank may be required to compute and maintain its leverage ratio on the basis of actual, rather than average total assets. This language would have to be modified to reflect that change. (3) Within sixty one hundred twenty (60120) days, the Board shall develop, implement, and thereafter ensure Bank adherence to a three year capital program. The program shall include: (a) specific plans for the maintenance of adequate capital that may in no event be less than the requirements of paragraph (1); 1 Adjusted total assets is defined in 12 C.F.R. § 3.2(a) as the average total asset figure used for Call Report purposes minus end-of-quarter intangible assets.; (b) projections for growth and capital requirements based upon a detailed analysis of the Bank's assets, liabilities, earnings, fixed assets, and off- balance sheet activities; (c) projections of the sources and timing of additional capital to meet the Bank's current and future needs; (d) the primary source(s) from which the Bank will strengthen its capital structure to meet the Bank's needs; (e) contingency plans that identify alternative methods should the primary capital source(s) under (d) above not be available; and (f) a dividend policy that permits the declaration of a dividend only: (i) when the Bank is in compliance with its approved capital program; (ii) when the Bank is in compliance with 12 U.S.C. §§ 56 and 60; and (iii) with prior written notice to the Assistant Deputy Comptroller. Upon receiving notice from the Assistant Deputy Comptroller, the Bank shall implement and adhere to the dividend policy. (4) Upon completion, the Bank's capital program shall be submitted to the Assistant Deputy Comptroller for prior determination of no supervisory objection. Upon receiving a determination of no supervisory objection from the Assistant Deputy Comptroller, the Bank shall implement and adhere to the capital program. The Board shall review and update the Bank's capital program on an annual basis, or more frequently if necessary. Copies of the reviews and updates shall be submitted to the Assistant Deputy Comptroller. (5) The Board shall ensure that the Bank has processes, personnel, and control systems to ensure implementation of and adherence to the program developed pursuant to this Article.

CAPITAL PLAN AND HIGHER MINIMUMS. (1) The Bank shall continue to maintain the following Tier 1 capital levels at least equal to eight percent (8 %) of adjusted total assets (as defined in 12 C.F.R. Part 3): (a) Total Risk Based capital at least equal to fourteen percent (14%) of risk- weighted assets; (b) Tier 1 capital at least equal to nine percent (9%) of adjusted total assets.1 (2) The requirement in this Agreement to maintain a specific capital level means that the Bank may not be deemed to be “well capitalized” for purposes of 12 U.S.C. § 1831o and 12 C.F.R. Part 6 pursuant to 12 C.F.R. § 6.4(b)(1)(iv). (3) Within sixty one hundred twenty (60120) days, the Board shall develop, implement, and thereafter ensure Bank adherence to a three year capital program. The program shall include: (a) specific plans for the maintenance of adequate capital that may in no event be less than the requirements of paragraph (1); 1 Adjusted total assets is defined in 12 C.F.R. § 3.2(a) as the average total asset figure used for Call Report purposes minus end-of-quarter intangible assets.; (b) projections for growth and capital requirements based upon a detailed analysis of the Bank's assets, liabilities, earnings, fixed assets, and off- balance sheet activities; (c) projections of the sources and timing of additional capital to meet the Bank's current and future needs; (d) the primary source(s) from which the Bank will strengthen its capital structure to meet the Bank's needs; (e) contingency plans that identify alternative methods should the primary source(s) under (d) above not be available; and (f) a dividend policy that permits the declaration of a dividend only: (i) when the Bank is in compliance with its approved capital program; (ii) when the Bank is in compliance with 12 U.S.C. §§ 56 and 60; and (iii) with the prior written notice to determination of no supervisory objection by the Assistant Deputy Comptroller. Upon receiving notice from the Assistant Deputy Comptroller, the Bank shall implement and adhere to the dividend policy. (4) Upon completion, the Bank's capital program shall be submitted to the Assistant Deputy Comptroller for prior determination of no supervisory objection. Upon receiving a determination of no supervisory objection from the Assistant Deputy Comptroller, the Bank shall implement and adhere to the capital program. The Board shall review and update the Bank's capital program on an annual basis, or more frequently if necessary. Copies of the reviews and updates shall be submitted to the Assistant Deputy Comptroller. (5) The Board shall ensure that the Bank has processes, personnel, and control systems to ensure implementation of and adherence to the program developed pursuant to this Article.