UNITED STATES OF AMERICA BEFORE THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM WASHINGTON, D.C.
Exhibit 10.1
UNITED STATES OF AMERICA
BEFORE THE
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
WASHINGTON, D.C.
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Written Agreement by and between |
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Docket No. 11-088-WA /XX-XX |
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OLD SECOND BANCORP, INC. |
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Aurora, Illinois |
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and |
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FEDERAL RESERVE BANK OF |
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CHICAGO |
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Chicago, Illinois |
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WHEREAS, Old Second Bancorp, Inc., Aurora, Illinois (“Old Second”), a registered bank holding company, owns and controls Xxx Xxxxxx Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx (the “Bank”), and various nonbank subsidiaries;
WHEREAS, it is the common goal of Old Second and the Federal Reserve Bank of Chicago (the “Reserve Bank”) to maintain the financial soundness of Old Second so that Old Second may serve as a source of strength to the Bank;
WHEREAS, Old Second and the Reserve Bank have mutually agreed to enter into this Written Agreement (the “Agreement”); and
WHEREAS, on July 19, 2011, the board of directors of Old Second, at a duly constituted meeting, adopted a resolution authorizing and directing Xxxxxxx X. Xxxxxxxx to enter into this Agreement on behalf of Old Second, and consenting to compliance with each and every provision of this Agreement by Old Second and its institution-affiliated parties, as defined in
sections 3(u) and 8(b)(3) of the Federal Deposit Insurance Act, as amended (the “FDI Act”) (12 U.S.C. §§ 1813(u) and 1818 (b)(3)).
NOW, THEREFORE, Old Second and the Reserve Bank agree as follows:
Source of Strength
1. The board of directors of Old Second shall take appropriate steps to fully utilize Old Second’s financial and managerial resources, pursuant to section 225.4 (a) of Regulation Y of the Board of Governors of the Federal Reserve System (the “Board of Governors”) (12 C.F.R. §225.4(a)), to serve as a source of strength to the Bank, including, but not limited to, taking steps to ensure that the Bank complies with the Consent Order issued by the Office of the Comptroller of the Currency on May 16, 2011, and any other supervisory action taken by the Bank’s federal regulator.
Dividends and Distributions
2. (a) Old Second shall not declare or pay any dividends without the prior written approval of the Reserve Bank and the Director of the Division of Banking Supervision and Regulation (the “Director”) of the Board of Governors.
(b) Old Second shall not directly or indirectly take dividends or any other form of payment representing a reduction in capital from the Bank without the prior written approval of the Reserve Bank.
(c) Old Second and its nonbank subsidiaries shall not make any distributions of interest, principal, or other sums on subordinated debentures or trust preferred securities without the prior written approval of the Reserve Bank and the Director.
(d) All requests for prior approval shall be received by the Reserve Bank at least 30 days prior to the proposed dividend declaration date, proposed distribution on
subordinated debentures, and required notice of deferral on trust preferred securities. All requests shall contain, at a minimum, current and projected information on Old Second’s capital, earnings, and cash flow; the Bank’s capital, asset quality, earnings, and allowance for loan and lease losses; and identification of the sources of funds for the proposed payment or distribution. For requests to declare or pay dividends, Old Second must also demonstrate that the requested declaration or payment of dividends is consistent with the Board of Governors’ Policy Statement on the Payment of Cash Dividends by State Member Banks and Bank Holding Companies, dated November 14, 1985 (Federal Reserve Regulatory Service, 4-877 at page 4-323).
Debt and Stock Redemption
3. (a) Old Second and its nonbank subsidiaries shall not, directly or indirectly, incur, increase, or guarantee any debt without the prior written approval of the Reserve Bank. All requests for prior written approval shall contain, but not be limited to, a statement regarding the purpose of the debt, the terms of the debt, and the planned source(s) for debt repayment, and an analysis of the cash flow resources available to meet such debt repayment.
(b) Old Second shall not, directly or indirectly, purchase or redeem any shares of its stock without the prior written approval of the Reserve Bank.
Capital Plan
4. Within 60 days of this Agreement, Old Second shall submit to the Reserve Bank an acceptable written plan to maintain sufficient capital at Old Second on a consolidated basis. The plan shall, at a minimum, address, consider, and include:
(a) The consolidated organization’s and the Bank’s current and future capital requirements, including compliance with the Capital Adequacy Guidelines for Bank Holding Companies: Risk-Based Measure and Tier 1 Leverage Measure, Appendices A and D of
Regulation Y of the Board of Governors (12 C.F.R. Part 225, App. A and D) and the applicable capital adequacy guidelines for the Bank issued by the Bank’s federal regulator;
(b) the adequacy of the Bank’s capital, taking into account the volume of classified credits, concentrations of credit, allowance for loan and lease losses, current and projected asset growth, and projected retained earnings;
(c) the source and timing of additional funds necessary to fulfill the consolidated organization’s and the Bank’s future capital requirements;
(d) supervisory requests for additional capital at the Bank or the requirements of any supervisory action imposed on the Bank by its federal regulator; and
(e) the requirements of section 225.4(a) of Regulation Y of the Board of Governors that Old Second serve as a source of strength to the Bank.
5. Old Second shall notify the Reserve Bank, in writing, no more than 45 days after the end of any quarter in which any of Old Second’s capital ratios fall below the approved plan’s minimum ratios. Together with the notification, Old Second shall submit an acceptable written plan that details the steps that Old Second will take to increase Old Second’s capital ratios to or above the approved plan’s minimums.
Cash Flow Projections
6. Within 60 days of this Agreement, Old Second shall submit to the Reserve Bank a written statement of its planned sources and uses of cash for debt service, operating expenses, and other purposes (“Cash Flow Projection”) for the remainder of 2011. Old Second shall submit to the Reserve Bank a Cash Flow Projection for each calendar year subsequent to 2011 at least one month prior to the beginning of that calendar year.
Compliance with Laws and Regulations
7. (a) In appointing any new director or senior executive officer, or changing the responsibilities of any senior executive officer so that the officer would assume a different senior executive officer position, Old Second shall comply with the notice provisions of section 32 of the FDI Act (12 U.S.C. §1831i) and Subpart H of Regulation Y of the Board of Governors (12 C.F.R. §§ 225.71 et seq.).
(b) Old Second shall comply with the restrictions on indemnification and severance payments of section 18 (k) of the FDI Act (12 U.S.C. §1828(k)) and Part 359 of the Federal Deposit Insurance Corporation’s regulations (12 C.F.R. Part 359).
Progress Reports
8. Within 45 days after the end of each calendar quarter following the date of this Agreement, the board of directors shall submit to the Reserve Bank written progress reports detailing the form and manner of all actions taken to secure compliance with the provisions of this Agreement and the results thereof, and a parent company only balance sheet, income statement, and, as applicable, report of changes in stockholders’ equity.
Approval and Implementation of Plan
9. (a) Old Second shall submit a written capital plan that is acceptable to the Reserve Bank within the applicable time period set forth in paragraph 4 of this Agreement.
(b) Within 10 days of approval by the Reserve Bank, Old Second shall adopt the approved capital plan. Upon adoption, Old Second shall promptly implement the approved plan, and thereafter fully comply with it.
(c) During the term of this Agreement, the approved capital plan shall not be amended or rescinded without the prior written approval of the Reserve Bank.
Communications
10. All communications regarding this Agreement shall be sent to:
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(a) |
Xx. Xxxxx X. Xxxx |
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Assistant Vice President |
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Federal Reserve Bank of Chicago |
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000 Xxxxx XxXxxxx Xxxxxx |
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Xxxxxxx, Xxxxxxxx 00000-0000 |
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(b) |
Xx. Xxxxxxx Xxxxxxxx |
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Chairman and Chief Executive Officer |
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Old Second Bancorp, Inc. |
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00 Xxxxx Xxxxx Xxxxxx |
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Xxxxxx, Xxxxxxxx 00000 |
Miscellaneous
11. Notwithstanding any provision of this Agreement, the Reserve Bank may, in its sole discretion, grant written extensions of time to Old Second to comply with any provision of this Agreement.
12. The provisions of this Agreement shall be binding upon Old Second and its institution-affiliated parties, in their capacities as such, and their successors and assigns.
13. Each provision of this Agreement shall remain effective and enforceable until stayed, modified, terminated, or suspended in writing by the Reserve Bank.
14. The provisions of this Agreement shall not bar, estop, or otherwise prevent the Board of Governors, the Reserve Bank, or any other federal or state agency from taking any other action affecting Old Second, the Bank, any nonbank subsidiary of Old Second, or any of their current or former institution-affiliated parties and their successors and assigns.
15. Pursuant to section 50 of the FDI Act (12 U.S.C. §1831aa), this Agreement is enforceable by the Board of Governors under section 8 of the FDI Act (12 U.S.C. §1818).
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the 22nd day of July, 2011.
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OLD SECOND BANCORP, INC. |
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FEDERAL RESERVE BANK | ||
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OF CHICAGO | ||
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By: |
/s/ Xxxxxxx X. Xxxxxxxx |
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By: |
/s/ Xxxx X. Xxxx |
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Xxxxxxx X. Xxxxxxxx |
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Xxxx X. Xxxx |
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Chairman and Chief Executive Officer |
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Vice President |
