XXXXXX XXXXXX 0X XXXXXXX
XXX0XX
THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
WASHINGTON, D.C.
Written Agreement by and between
XXXXXXXXXXXXX.XXX, INC.
Philadelphia, Pennsylvania
and
FEDERAL RESERVE BANK OF PHILADELPHIA
Philadelphia, Pennsylvania
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) Docket No. Ol-O4-WA/XX-XX
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WHEREAS, in recognition of their common goal to restore and maintain the
financial soundness of XXXXxxxXxxxxx.xxx, Inc., Philadelphia, Pennsylvania
("USAB"), a registered bank holding company that owns and controls the vBank,
Philadelphia, Pennsylvania (the "Bank"), a state chartered nonmember bank, USAB
and the Federal Reserve Bank of Philadelphia (the "Reserve Bank") have mutually
agreed to enter into this Written Agreement (the "Agreement"); and WHEREAS, on
March 2, 2001, the board of directors of USAB at a duly constituted meeting,
adopted a resolution authorizing and directing, Xx. Xxxxxxxx, to enter into this
Agreement on behalf of USAB and consenting to compliance by USAB and its
institution-affiliated parties, as defined by sections 3(u) and 8(b)(3) of the
Federal Deposit Insurance Act, as amended (the "FDI Act") (12 USC. 1813(u) and
18l8(b)(3)), with each and every provision of this Agreement.
NOW, THEREFORE, USAB and the Reserve Bank agree as follows:
1. (a) USAB shall not declare or pay any cash or stock dividends without
the prior written approval of the Reserve Bank and the Director of the Division
of Banking Supervision and Regulation of the Board of Governors of the Federal
Reserve System (the "Director").
(b) USAB 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.
(c) Requests for approval shall be received at least 30 days prior to
the proposed date for the declaration of dividends or proposed distribution and
shall contain, but not be limited to, information on the amount to be paid,
current and projected consolidated earnings and cash flow for the most recent
annual period and the last quarter, capital levels of USAB and the Bank, and the
asset quality and loan loss reserve needs of the Bank, and a determination by
USAB that the proposed dividend payment or distribution will not place undue
pressure on the capital resources and liquidity of USAB or the Bank.
2. (a) USAB shall not, directly or indirectly, incur 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, the planned source(s) for debt repayment,
and an analysis of the cash flow resources available to meet such debt
repayment.
(b) Within 60 days of this Agreement, USAB shall submit to the Reserve
Bank an acceptable written plan to service its current debt without incurring
any additional debt.
3. Within 30 days of this Agreement, USAB shall submit to the Reserve Bank
a written statement of the company's planned sources and uses of cash for debt
retirement, operating expenses, and other purposes for the current calendar
year. Thereafter, by January 30th of each year following 2001, USAB shall submit
to the Reserve Bank a written statement for that calendar year.
4. USAB shall not, directly or indirectly, purchase or redeem any of its
securities, or make, affirm, or ratify any commitment to purchase or redeem any
of its securities without the prior written approval of the Reserve Bank.
5. (a) Within 45 days of this Agreement, USAB shall submit to the Reserve
Bank an acceptable plan to maintain sufficient capital at the Bank and the
consolidated organization.
The plan shall, at a minimum, address, consider, and include:
(i) the current and future capital requirements of the Bank
and the consolidated organization, including compliance with the
Capital Adequacy Guidelines for Bank Holding Companies: Risk-Based
Measure and Tier I Leverage Measure, Appendices A and D of Regulation Y
of the Board of Governors (12 C.F.R. Part 225, App. A and D);
(ii) the asset quality, condition, and risk profile of the
Bank;
(iii) the anticipated level of consolidated earnings;
(iv) procedures for monitoring, on a monthly basis, the
capital adequacy of the bank and the consolidated organization;
(v) the source and timing of additional funds to fulfill
USAB's and the Bank's future capital requirements and to maintain the
adequacy of the Bank's allowance for loan loss reserves; and
(vi) federal or state supervisory requests for additional
capital at the Bank or the requirements of any supervisory action
imposed on the Bank by any federal or state regulator.
(b) Within 30 days of this Agreement, USAB shall submit to the Reserve
Bank a status report detailing management's capital raising efforts and any
actions taken to control asset growth of the consolidated organization and
restore it to profitability. Thereafter, USAB shall submit an updated status
report within 15 days of the end of each calendar quarter.
6. (a) Within 90 days of this Agreement, and semi-annually thereafter, the
board of directors shall review management's adherence to USAB's and its nonbank
subsidiaries' written policies and procedures and shall prepare written findings
and conclusions of this review along with written descriptions of any management
or operational changes that are made as a result of this review. The written
findings shall be included in the minutes of the board of directors meetings.
(b) The board of directors shall maintain adequate and complete minutes
of all board meetings, approve such minutes, and retain them for supervisory
review.
(c) USAB's board of directors and management shall take all actions
that are necessary to ensure that the Bank complies fully with all formal or
informal supervisory actions that have been imposed or may be imposed by the
Federal Deposit Insurance Corporation ("FDIC") or the Commonwealth of
Pennsylvania Department of Banking (the "State Banking Department ").
7. (a) Within 45 days of this Agreement, USAB shall submit to the Reserve
Bank an acceptable written policy and procedures for intercorporate fees or
payments assessed upon or paid by the Bank to USAB or any of its nonbank
subsidiaries. The policy and procedures shall be consistent with the
requirements of SR 79-533, Diversion of Bank Income by Parent BHC, dated March
19, 1979, and shall, at a minimum, address, consider, and include:
(i) circumstances under which fees and payments are to be
charged;
(ii) methodology for determining the appropriate amount of the
fees and payments; and
(iii) documenting the terms of all intercompany fees and
payments. The policy and procedures shall be provided to the Bank and
the documentation of fees and payments shall be maintained for
supervisory review.
(b) Until USAB adopts the acceptable policy and procedures described in
paragraph 7(a), USAB or its nonbank subsidiaries shall not assess or in any
other manner charge or receive from the Bank any service or management fees of
any nature without the prior written approval of the Reserve Bank. Any request
for prior approval pursuant to this paragraph shall be accompanied by
documentation adequate to provide the Reserve Bank with the details of each fee
proposed to be paid by the Bank and a description of the benefits proposed to be
derived by the payment of the fee, the type of services to be rendered; and the
identity of the person or persons who will supply the services or advice covered
by the fee.
8. (a) USAB shall immediately take all necessary steps, consistent with
sound banking practices, to eliminate or correct all violations of laws and
regulations noted in the report of targeted inspection of USAB conducted by the
Reserve Bank in September 2000 (the "Report of Inspection"). The board of
directors shall take all necessary steps to ensure USAB's future compliance with
applicable laws and regulations.
(b) Within 30 days of this Agreement, USAB shall submit to the Reserve
Bank a written description of the actions taken to correct the violations of
sections 23A and 23B of the Federal Reserve Act set forth in the Report of
Inspection and to mitigate any associated risks to the Bank.
9. (a) Within 60 days of this Agreement, USAB shall submit to the Reserve
Bank a written comprehensive strategic plan for the consolidated organization
for the remainder of 2001. The plan shall at minimum, address, consider, and
include:
(i) the responsibilities of the board of directors regarding
the definition, approval, implementation, and monitoring of the
strategic plan and budget, and procedures to ensure that the board of
directors fullfills such responsibilities;
(ii) management, operational, and financial performance
objectives, and the specific strategies for achieving such objectives;
(iii) a monthly review of the actual income and expenses of
USAB in comparison to budgetary projections; and
(iv) USAB's plans for the sale or merger of any assets or the
discontinuation or consolidation of any operations.
(b) A written strategic plan for each calendar year following 2001
shall be submitted to the Reserve Bank at least 30 days prior to the beginning
of that calendar year.
(c) The strategic plans required by this paragraph shall be reviewed
quarterly by the board of directors and any modifications to those plans as a
result of the review shall be Submitted to the Reserve Bank within 10 days of
the review.
10. (a) Within 30 days after the end of each calendar quarter (March 31,
June 30, September 30, and December 31) following the date of this Agreement,
the board of directors shall submit a written progress report to the Reserve
Bank detailing all actions taken to comply with each provision of this Agreement
and the results of those actions. The board of directors shall certify that each
director has reviewed each quarterly progress report. Such reports may be
discontinued when the Reserve Bank, in writing, has released USAB from making
further reports.
(b) USAB shall submit to the Reserve Bank a copy of all written reports
submitted by the Bank to the FDIC and the State Banking Department pursuant to
any formal or informal supervisory action entered into by the Bank and the FDIC
or the State Banking Department.
11. USAB shall submit the plans, policy, and procedures required by
paragraphs 2(b), 5(a), and 7(a) hereof that are acceptable to the Reserve Bank
within the time periods set forth in this Agreement. USAB shall adopt the policy
and all plans and procedures that are approved by the Reserve Bank within 10
days of approval and then shall fully comply with them. During the term of this
Agreement, USAB shall not amend or rescind the approved plans, policy, and
procedures without the prior written approval of the Reserve Bank.
12. All communications regarding the Agreement shall be sent to:
(a) Xxxxx Xxxxxxxxx
Vice President
Federal Reserve Bank of Philadelphia
00 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
(b) Xxxxxx X. Xxxxxxxx
Chairman of the Board
XXXXxxxXxxxxx.xxx, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
13. The provisions of this Agreement shall be binding upon USAB and all of
its institution-affiliated parties, in their capacities as such, and (heir
successors and assigns.
14. Each provision of this Agreement shall remain in full force and effect
until stayed, modified, terminated, or suspended by the Reserve Bank.
15. Notwithstanding any provision of this Agreement to the contrary, the
Reserve Bank may, in its sole discretion, grant written extensions of time to
USAB to comply with any provision of this Agreement.
16. The provision of this Agreement shall not bar, estop or otherwise
prevent the Board of Governors, Reserve Bank, or any other federal or state
agency or department from taking any other action affecting USAB, its
subsidiaries, and its current or former institution affiliated parties.
17. This Agreement is a "written agreement" for the purposes of and is
enforceable by the Board of Governors as an order issued 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 2nd day of March 2001.
XXXXxxxxxxxxx.xxx, Inc. Federal Reserve Bank of Philadelphia
The undersigned directors of USAB each acknowledges having read the foregoing
Agreement and approves of the consent thereto by USAB.
Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx Xxxxxxxx X. Xxxxx
Xxxxxx X. Beach
