AGREEMENT BY AND BETWEEN T Bank, N.A. Dallas, TX and The Comptroller of the Currency
EXHIBIT 10.9
AA-EC-09-103
AGREEMENT
BY AND BETWEEN
T Bank,
N.A.
Dallas,
TX
and
The
Comptroller of the Currency
Whereas,
T Bank, N.A., Dallas, TX (“Bank”) and the Comptroller of the Currency of the
United States of America (“Comptroller”) wish to protect the interests of the
Bank, depositors of the Bank, and consumers, and, toward that end, wish the Bank
to operate in a safe and sound manner and in accordance with all applicable
laws, rules and regulations, and
Whereas,
the Bank maintained account relationships with Giact Systems, Inc. (“Giact”), a
third party payment processor for certain telemarketers and internet merchants
that also had accounts at the Bank (collectively “the merchants”);
and
Whereas,
the Comptroller has examined the Bank through his National Bank Examiner and has
found unfair practices in connection with the Bank’s account relationships with
Giact and the merchants, as well as unsafe or unsound banking practices at the
Bank relating to asset quality, liquidity management, and earnings,
and
Whereas,
the Bank and the Comptroller wish to remediate possible harm suffered by
consumers as a result of the activities of Giact and the merchants,
and
Whereas,
in consideration of the above premises, it is agreed, between the Bank, by and
through its duly elected and acting Board of Directors (“Board”), and the
Comptroller, through his authorized representative, that the Bank shall operate
at all times in compliance with the articles of this Agreement.
ARTICLE
I
JURISDICTION
(1) This
Agreement shall be construed to be a “written agreement entered into with the
agency” within the meaning of 12 U.S.C. § 1818(b)(1).
(2) This
Agreement shall be construed to be a “written agreement between such depository
institution and such agency” within the meaning of 12 U.S.C. § 1818(e)(1) and 12
U.S.C. § 1818(i)(2).
(3) This
Agreement shall be construed to be a “formal written agreement” within the
meaning of 12 C.F.R. § 5.51(c)(6)(ii). See 12 U.S.C. § 1831i.
(4) This
Agreement shall be construed to be a “written agreement” within the meaning of
12 U.S.C. § 1818(u)(1)(A).
(5) All
reports or plans which the Bank or Board has agreed to submit to the Assistant
Deputy Comptroller pursuant to this Agreement shall be forwarded to
the:
Assistant
Deputy Comptroller
Dallas
Field Xxxxxx
00000
Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Article
II
COMPLIANCE
COMMITTEE
(1) Within
ten (10) days, the Board shall appoint a Compliance Committee of at least three
(3) directors, who may also be members of the Consent Cease and Desist Order
Committee currently in existence, and none of whom shall be an employee or
controlling shareholder of the Bank or any of its affiliates (as the term
“affiliate” is defined in 12 U.S.C. § 371c(b)(1), or a family member of such
person). Upon appointment, the names of the members of the Compliance
Committee, and in the event of a change of the membership, the name of any new
member, shall be submitted in writing to the Assistant Deputy Comptroller for
supervisory nonobjection. The Compliance Committee shall be
responsible for monitoring and coordinating the Bank’s adherence to the
provisions of this Agreement.
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(2) The
Compliance Committee shall meet at least monthly.
(3) Within
thirty (30) days of the appointment of the Compliance Committee and within 30
days of the end of each calendar quarter thereafter, the Compliance Committee
shall submit a written progress report to the Board, setting forth in
detail:
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(a)
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actions
taken since the prior report (if any) to comply with each Article of this
Agreement;
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(b)
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the
results of those actions; and
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(c)
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a
description of the actions needed and the anticipated time frame to
achieve full compliance with each Article of this
Agreement.
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(4) Within
ten (10) days of the receipt of the Compliance Committee’s initial report and
within ten (10) days of the receipt of the Compliance Committee’s report
thereafter, the Board shall submit progress reports to the Assistant Deputy
Comptroller. These reports shall include the Compliance Committee’s report to
the Board for the applicable quarter with any additional comments by the
Board.
(5) The
Board shall ensure that the Bank has sufficient processes, personnel, and
control systems to effectively implement and adhere to all provisions of this
Agreement, and that Bank personnel have sufficient training and authority to
execute their duties and responsibilities under this Agreement.
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Article
III
CONSUMER
RESTITUTION
(1) Within
fifteen (15) days, the Bank shall deposit five million one hundred thousand
dollars ($5,100,000) into a segregated deposit account at the Bank (“Restitution
Account”), which represents an estimate of the restitution required by this
Article. Additional amounts shall be deposited into the Restitution
Account if necessary to fully comply with this Article.
(2) Funds
deposited into the Restitution Account pursuant to Paragraph (1) of this Article
shall be used to make direct restitution payments by issuing checks to each
“Eligible Consumer,” as defined in Paragraph (3) of this Article.
(3) “Eligible
Consumer,” for purposes of this Agreement, is defined as any individual or
entity that:
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(a)
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had
funds withdrawn from their account and deposited into an account at the
Bank via a remotely created check (“RCC”), demand draft, or similar
instrument generated by Giact on behalf of any of the following merchants
between September 1, 2006 and August 31,
2007:
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(i) Action
Results Marketing LLC;
(ii) Enterprise
Technology Group, Inc. dba AmeriTrust Financial;
(iii) GA
Financial LLC dba Platinum Advantage;
(iv) Low
Pay, Inc.
(v) Reliant
Holdings, Inc. dba Horizon Card Services;
(vi) V2
& Sons dba Xxxxxxxxxxxxx.xxx;
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(vii) C1L
LLC dba Credit One Law;
(viii) EZO
LLC dba SaveYourCreditRating;
(ix) My
Clean Start, Inc.;
(x) Global
USI Communications Services dba USI Services, Inc.;
(xi) RSLN
Financial dba XxxXXX and dba Club America Fulfillment;
(xii) XxxxxxXxxxxxxx.xxx
LLC; and
(xiii) Market
Power Marketing Solutions LLC dba VS_MC Card Services;
and
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(b)
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the
funds withdrawn from the individual or entity’s account have not already
been repaid to the individual or entity by the Bank, Giact, the merchant,
or the Federal Trade Commission
(“FTC”).
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(4) Restitution
shall be in an amount that will fully reimburse each Eligible Consumer the
amount of funds withdrawn from their account.
(5) Within
fifteen (15) days, the Board shall engage the services of an independent
consultant experienced with consumer restitution to assist the Bank in
developing and implementing a restitution plan as required by Paragraph (6) of
this Article. Prior to finalizing the engagement, the Bank shall
submit the name and qualifications of the independent consultant to the
Assistant Deputy Comptroller for prior supervisory review and
non-objection.
(6) Within
sixty (60) days, the Board shall develop a restitution plan for carrying out the
restitution required by this Article and submit it to the Assistant Deputy
Comptroller for prior determination of supervisory non-objection. The
restitution plan shall include, but not be limited to, the
following:
(a) a
description of the methods to be used, and the time necessary
to:
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i.
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compile
a list of the names and amounts owed to each Eligible Consumer;
and
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ii.
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reasonably
verify each eligible consumer’s current
address.
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(b)
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a
description of the procedures for issuance and tracking of restitution
checks mailed to, and negotiated by, Eligible Consumers, including
procedures for publicizing the restitution program and providing
additional information to consumers receiving restitution checks, and
procedures for handling undeliverable and non-negotiated
checks.
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(c)
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a
description of the process by which the Bank will submit documentation to
the Assistant Deputy Comptroller substantiating the Bank’s restitution
efforts and for obtaining the Assistant Deputy Comptroller’s concurrence
in writing that the restitution obligations are fully
satisfied.
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(d)
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a
description of the Bank’s plans and anticipated time frame for making
restitution to Eligible Consumers who had funds withdrawn from their
account by Low Pay, Inc., taking into consideration the FTC action against
Low Pay Inc., et. al., (see FTC v. Low Pay,
Inc., No. 09-1265, D. Or. Filed Oct. 28,
2009).
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(7) Upon
receipt of a determination of supervisory non-objection by the Assistant Deputy
Comptroller to the restitution plan submitted pursuant to Paragraph (6) of this
Article, the Bank shall adopt, implement and adhere to the restitution
plan. Any proposed changes to or deviations from the approved
restitution plan shall be submitted in writing to the Assistant Deputy
Comptroller for prior supervisory review and non-objection.
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(8) The
Bank shall be responsible for all expenses associated with the requirements of
this Article.
(9) Funds
in the Restitution Account remain property of the Bank unless and until
restitution checks drawn on the account are negotiated by such
consumers.
Article
IV
RELATIONSHIPS WITH PAYMENT
PROCESSORS
(1) The
Bank has represented that it no longer has any banking relationships with
any
Covered Payment Processors, as defined in Paragraph (5) of this
Article.
(2) Prior
to entering into a banking relationship with any Covered Payment Processor, as
defined in Paragraph (5) of this Article, the Bank shall develop policies,
procedures, and standards for payment processor relationships that ensure
compliance with safe and sound banking practices, and all applicable laws,
regulations, and rules, including the FTC Act. Prior to adoption, the
policies, procedures, and standards developed pursuant to this paragraph shall
be forward to the Assistant Deputy Comptroller for review and written
determination of supervisory non-objection. Upon receipt of the
Assistant Deputy Comptroller’s written determination of supervisory non-
objection, the Bank shall immediately implement and thereafter ensure adherence
to these policies, procedures, and standards.
(3) The
Bank shall not enter into a banking relationship with any Covered Payment
Processor, as defined in Paragraph (5) of this Article, without obtaining a
prior determination of supervisory non-objection from the Assistant Deputy
Comptroller.
(4) “RCC,”
for the purposes of this Agreement, is a remotely created check as defined in
Regulation CC, 12 C.F.R. 229.2(fff), which is a check that is not created by the
paying bank and that does not bear a signature applied by the person on whose
account the check is
drawn.
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(5)
“Covered Payment Processor,” for the purposes of this Agreement is defined
as:
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(a)
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a
merchant that deposits RCCs and specializes primarily or exclusively in
the direct marketing of services or products to end-user consumers whereby
a sales person uses the telephone, internet, or direct mail to solicit
prospective customers and contacts are typically unsolicited by the
consumer;
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(b)
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a
third payment processor that regularly deposits RCCs on behalf of any
merchant that specializes primarily or exclusively in the direct marketing
of services or products to end-user consumers whereby a sales person uses
the telephone, internet, or direct mail to solicit prospective customers
and contacts are typically unsolicited by the consumer;
and
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(c)
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an
originator or merchant that:
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(i)
has a monthly average RCC return rate in excess of 2.5%; or
(ii) has
a monthly average of unauthorized ACH return rate in excess of 1%;
or
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(d)
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a
payment processor that regularly processes payments on behalf of any
entity described in paragraph
(4)(c).
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Article
V
CAPITAL MAINTENANCE PROGRAM
AND STRATEGIC CAPITAL PLANNING
(1) Within
ninety (90) days of the earlier of: (A) obtaining the Assistant Deputy
Comptroller’s written concurrence that restitution has been completed, or (B)
the Bank’s receipt of written notice from the OCC that the Bank’s capital is
materially deficient, the Bank shall achieve and thereafter maintain the
following capital levels (as defined in 12 C.F.R. Part 3)1:
1The
requirement in this Agreement to meet and maintain a specific capital level
means that the Bank cannot 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).
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(a)
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Total
Risk Based capital at least equal to eleven and one-half percent (11.5%)
of risk-weighted assets; and
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(b)
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Tier
1 leverage capital at least equal to nine (9%) of adjusted total
assets.2
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(2) Within
sixty (60) days, the Board shall forward to the Assistant Deputy Comptroller for
review and written determination of supervisory non-objection, a written Capital
Plan for the Bank covering at least a three-year period. At the next
Board meeting following receipt of the Assistant Deputy Comptroller’s written
determination of supervisory nonobjection, the Board shall adopt and the Bank
(subject to Board review and ongoing monitoring) shall immediately implement and
thereafter ensure adherence to the Capital Plan. The Capital Plan shall
include:
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(a)
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specific
plans for the maintenance of adequate capital, which may in no event be
less than the requirements of Paragraph
(1);
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(b)
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projections
for growth and capital requirements based upon a detailed analysis of the
Bank’s assets, liabilities, earnings, fixed assets, and offbalance sheet
activities;
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(c)
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projections
of the sources and timing of additional capital to meet the Bank’s current
and future needs;
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(d)
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the
primary source(s) from which the Bank will strengthen its capital
structure to meet the Bank’s needs;
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2Adjusted
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.
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(e)
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contingency
plans that identify alternative methods should the primary source(s) under
(d) above not be available.
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(3)
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The
Bank may declare a dividend only:
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(a) when
the Bank is in compliance with its approved Capital Plan;
(b) when
the Bank is in compliance with 12 U.S.C. §§ 56 and 60; and
(c) with
the prior written approval of the Assistant Deputy Comptroller.
(4) The
Board shall review and update the Bank’s Capital Plan at least annually and more
frequently if necessary or requested by the Assistant Deputy
Comptroller. Revisions to the Bank’s Capital Plan shall be submitted
to the Assistant Deputy Comptroller for a prior written determination of no
supervisory objection.
(5) If
the Bank fails to submit an acceptable Capital Plan as required by Paragraph (2)
of this Article, fails to implement or adhere to a Capital Plan for which the
Assistant Deputy Comptroller has taken no supervisory objection, or fails to
achieve and maintain the minimum capital ratios as required by Paragraph (1) of
this Article, then in the sole discretion of the OCC, the Bank shall, upon
direction of the OCC, within sixty (60) days develop and shall submit to the OCC
for its review and prior determination of no supervisory objection a capital
contingency plan, which shall detail the Board’s proposal to sell or merge the
Bank, or liquidate the Bank under 12 U.S.C. § 181. After the OCC has
advised the Bank that it does not take supervisory objection to the capital
contingency plan, the Board shall immediately implement, and shall thereafter
ensure adherence to, the terms of the contingency plan. Failure to
submit a timely, acceptable contingency plan may be deemed a violation of this
Agreement, in the exercise of the OCC’s sole discretion.
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Article
VI
CRITICIZED
ASSETS
(1) The
Bank shall take immediate and continuing action to protect its interest in those
assets criticized in the most recent Report of Examination, in any subsequent
Report of Examination, by internal or external loan review, or in any list
provided to management by the National Bank Examiners during any
examination.
(2) Within
sixty (60) days, the Board shall adopt and the Bank (subject to Board review and
ongoing monitoring) shall implement, and thereafter ensure adherence to a
written program designed to reduce the level of criticized assets to a level
deemed satisfactory.
(3) A
copy of the Board’s program 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 implement and adhere to
the program.
(4) 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.
(5) The
Board, or a designated committee, shall conduct a review, on at least a
quarterly basis, to determine:
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(a)
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the
status of each criticized asset or criticized portion thereof that equals
or exceeds two hundred fifty thousand dollars
($250,000);
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(b)
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management’s
adherence to the program adopted pursuant to this
Article;
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(c)
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the
status and effectiveness of the written program;
and
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(d)
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the
need to revise the program or take alternative
action.
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(6) A
copy of each review shall be forwarded to the Assistant Deputy Comptroller on a
quarterly basis.
Article
VII
LIQUIDITY
MANAGEMENT
(1) Within
sixty (60) days, the Board shall develop and implement an asset liquidity
enhancement plan designed to increase the amount of asset liquidity maintained
by the Bank. Among other things, the plan shall include the timeline
and means by which the Bank will lower and thereafter maintain its loan to
deposit ratio (net of brokered deposits) to no greater than 85%.
(2) A
copy of the Board’s asset liquidity enhancement plan shall be submitted to the
Assistant Deputy Comptroller for review and 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 plan.
(3) The
Board or a designated committee comprised of Board members shall review the
Bank’s liquidity on a monthly basis. Such reviews shall
consider:
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(a)
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a
maturity schedule of certificates of deposit, including large uninsured
deposits;
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(b)
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the
volatility of demand deposits including escrow
deposits;
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(c)
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the
amount and type of loan commitments and standby letters of
credit;
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(d)
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an
analysis of the continuing availability and volatility of present funding
sources;
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(e)
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an
analysis of the impact of decreased cash flow from the Bank’s loan
portfolio resulting from delinquent and non-performing loans;
and
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(f)
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an
analysis of the impact of decreased cash flow from the sale of loans or
loan participations.
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(4) The
Board shall take appropriate action to ensure adequate sources of liquidity in
relation to the Bank’s needs. Monthly reports shall set forth minimum
liquidity requirements and sources. Copies of these reports shall be
forwarded monthly to the Assistant Deputy Comptroller.
Article
VIII
PROFIT
PLAN
(1) Within
sixty (60) days, the Board shall develop, implement, and thereafter ensure Bank
adherence to a written profit plan to improve and sustain the earnings of the
Bank. This plan shall include, at minimum, the following
elements:
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(a)
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identification
of the major areas in and means by which the Board will seek to improve
the Bank’s operating performance;
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(b)
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realistic
and comprehensive budgets, including projected balance sheets and year-end
income statements;
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(c)
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a
budget review process to monitor the Bank’s income and expenses, and to
compare actual figures with budgetary projections;
and
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(d)
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a
description of the operating assumptions that form the basis for major
projected income and expense
components.
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(2) The
budgets and related documents required in Paragraph (1) above for year 2010
shall be submitted to the Assistant Deputy Comptroller upon
completion. The Board shall submit to the Assistant Deputy
Comptroller annual budgets as described in Paragraph (1) above for each year
this Agreement remains in effect. The budget for each year shall be submitted on
or before December 31st of the preceding year.
(3) The
Board shall forward comparisons of its balance sheet and profit and loss
statement to the profit plan projections to the Assistant Deputy Comptroller on
a quarterly basis.
(4) The
Board shall ensure that the Bank has processes, personnel, and control systems
to ensure implementation of and adherence to the plan developed pursuant to this
Article.
Article
IX
CLOSING
(1) Although
the Bank, through its Board, is required to submit certain programs and reports
to the Assistant Deputy Comptroller for review or prior written determination of
no supervisory objection, the Board has the ultimate responsibility for proper
and sound management of the Bank, as well as compliance with all of the
provisions contained in this Agreement.
(2) It
is hereby agreed that the provisions of this Agreement constitute a settlement
of the matters described herein. The Comptroller agrees not to
institute proceedings against the Bank for any violations of the FTC Act, or any
unsafe or unsound practices, in connection with its relationship with Giact and
any Giact-referred merchants (including, but not limited to, the thirteen
merchants listed in Article III, paragraph (3)(a) of this Agreement), unless
such acts, omissions, or violations reoccur.
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(3) Subject
only to paragraph (2) of this Article, it is expressly and clearly understood
that if, at any time, the Comptroller deems it appropriate in fulfilling the
responsibilities placed upon him by the several laws of the United States of
America to undertake any action affecting the Bank, nothing in this Agreement
shall in any way inhibit, estop, bar, or otherwise prevent the Comptroller from
so doing.
(4) Any
time limitations imposed by this Agreement shall begin to run from the effective
date of this Agreement, unless otherwise specified. For the purposes
of this Agreement, “days” shall mean calendar days.
(5) The
provisions of this Agreement shall be effective upon execution by the parties
hereto and its provisions shall continue in full force and effect unless or
until such provisions are amended in writing by mutual consent of the parties to
the Agreement or excepted, waived, or terminated in writing by the
Comptroller.
(6) In
each instance in this Agreement in which the Board is required to ensure
adherence to, and undertake to perform certain obligations of the Bank, it is
intended to mean that the Board shall:
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(a)
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authorize
and adopt such actions on behalf of the Bank as may be necessary for the
Bank to perform its obligations and undertakings under the terms of this
Agreement;
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(b)
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require
the timely reporting by the Bank management of such actions directed by
the Board to be taken under the terms of the
Agreement;
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(c)
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follow-up
on any non-compliance with such actions in a timely and appropriate
manner; and
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(d)
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require
corrective action be taken in a timely manner of any noncompliance with
such actions.
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(7) Nothing
in this Agreement is, or is intended to constitute, any finding or conclusion as
to any action taken by the Bank. By entering into this Agreement, the
Bank does not admit or deny any fact, finding, conclusion, issue of law, or
violation of law; nor shall compliance with this Agreement constitute or be
construed as an admission or denial by the Bank as to any fact, finding,
conclusion, issue of law, or violation of law. The Agreement by the
Bank to institute a practice pursuant to this Agreement does not constitute an
admission or denial that the Bank’s practice was otherwise prior to the date of
the Agreement.
(8) The
Bank entered into a Consent Cease and Desist Order dated July 9, 2008 (“July
2008 Order”). This Agreement replaces the July 2008 Order in its
entirety and therefore, the July 2008 Order is hereby terminated.
(9) This
Agreement is intended to be, and shall be construed to be, a supervisory
“written agreement entered into with the agency” as contemplated by 12 U.S.C. §
1818(b)(1), and expressly does not form, and may not be construed to form, a
contract binding on the Comptroller or the United
States. Notwithstanding the absence of mutuality of obligation, or of
consideration, or of a contract, the Comptroller may enforce any of the
commitments or obligations herein undertaken by the Bank under his supervisory
powers, including 12 U.S.C. §
1818(b)(1), and not as a matter of contract law. The Bank expressly
acknowledges that neither the Bank nor the Comptroller has any intention to
enter into a contract. The Bank also expressly acknowledges that no
officer or employee of the Office of the Comptroller of the Currency has
statutory or other authority to bind the United States, the U.S. Treasury
Department, the Comptroller, or any other federal bank regulatory agency or
entity, or any officer or employee of any of those entities to a contract
affecting the Comptroller’s exercise of his supervisory
responsibilities. The terms of this Agreement, including this
paragraph, are not subject to amendment or modification by any extraneous
expression, prior agreements or prior arrangements between the parties, whether
oral or written.
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IN
TESTIMONY WHEREOF, the undersigned, authorized by the Comptroller, has hereunto
set his hand on behalf of the Comptroller.
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/s/
Xxx
Xxxxxx
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April
15, 2010
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Xxx
Xxxxxx
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Deputy
Comptroller
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Southern
District
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IN
TESTIMONY WHEREOF, the undersigned, as the duly elected and acting Board of
Directors
of the Bank, have hereunto set their hands on behalf of the Bank.
IN
TESTIMONY WHEREOF, the undersigned, as the duly elected and acting Board of
Directors
of the Bank, have hereunto set their hands on behalf of the Bank.
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/s/
Xxxxxxx Xxxxx
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April
15, 2010
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Xxxxxxx
Xxxxx
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Date
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/s/
Xxxxxxx X. Xxxxxx
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April
15, 2010
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Xxxxxxx
X. Xxxxxx
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Date
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/s/
Xxx X. Xxxxx
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April
15, 2010
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Xxx
X. Xxxxx
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Date
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/s/
Xxxxxxx Xxxxx
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April
15, 2010
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Xxxxxxx
Xxxxx
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Date
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/s/
Xxxxx X. Xxxxxxxx
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April
15, 2010
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Xxxxx
X. Xxxxxxxx
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Date
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/s/
Xxx Xxxxxxxx
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April
15, 2010
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Xxx
Xxxxxxxx
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Date
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/s/
Xxxxxxx Xxxxxx
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April
15, 2010
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Xxxxxxx
Xxxxxx
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Date
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/s/
Xxxxxx Xxxxx
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April
15, 2010
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Xxxxxx
Xxxxx
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Date
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/s/
Xxxx Xxxxxxxx
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April
15, 2010
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Xxxx
Xxxxxxxx
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Date
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/s/
Xxxxxx X. Xxxxx
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April
15, 2010
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Xxxxxx
X. Xxxxx
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Date
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/s/
Xxxxxxx X. Xxxxx III
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April
15, 2010
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Xxxxxxx
X. Xxxxx III
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Date
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April
15, 2010
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April
15, 2010
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April
15, 2010
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AA-EC-09-103
- 18
-
