Exhibit 10.4
UNITED STATES OF AMERICA
BEFORE
THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
WASHINGTON, D.C.
Written Agreement by and among )
)
UNITED BANCSHARES, INC. )
Philadelphia, Pennsylvania )
)
UNITED BANK OF PHILADELPHIA )
Philadelphia, Pennsylvania ) Docket Nos. 00-002-WA/XX-XX
) 00-002-WA/XX-XX
and )
)
FEDERAL RESERVE BANK )
OF PHILADELPHIA )
Philadelphia, Pennsylvania )
WHEREAS, in recognition of their common goal to restore and maintain the
financial soundness of United Bancshares, Inc., Philadelphia, Pennsylvania
("Bancshares"), a registered bank holding company, and its subsidiary bank, the
United Bank of Philadelphia, Philadelphia, Pennsylvania (the "Bank"), a state
chartered bank that is a member of the Federal Reserve System, Bancshares, the
Bank, and the Federal Reserve Bank of Philadelphia (the "Reserve Bank") have
mutually agreed to enter into this Written Agreement (the "Agreement"); and
WHEREAS, on February 22, 2000, the boards of directors of Bancshares and
the Bank, at duly constituted meetings, adopted resolutions authorizing and
directing Xxxx X. Xxxxxxxx, to enter into this Agreement on behalf of
Bancshares and the Bank, and consented to compliance with each and every
applicable provision of this Agreement by Bancshares and the Bank and their
institution-affiliated parties.
NOW, THEREFORE, Bancshares, the Bank and the Reserve Bank agree as follows:
MANAGEMENT REVIEW
1. (a) Within 90 days of this Agreement, the Bank's board of directors
shall conduct a review of the functions and performance of the Bank's officers
and shall forward to the Reserve Bank a written report that includes findings,
conclusions, and a description of specific actions that the board of directors
proposes to take to strengthen the Bank's management and its oversight by the
board of directors. The review shall focus on an assessment of the duties
performed by each officer, reporting lines of authority, and the ability of each
officer to perform capably his or her assigned duties. The primary purpose of
this review shall be to aid in the development of a management structure that is
suitable to the Bank's needs and is adequately staffed by qualified and trained
personnel, who are able to devote full-time, on-site service to the Bank. At a
minimum, the qualifications of management shall be assessed for its ability to
(i) restore and maintain all aspects of the Bank to a safe and sound condition,
and (ii) comply with the requirements of this Agreement.
(b) Within 30 days of this Agreement, the Bank's board of directors shall
develop a written plan providing for orderly management succession and submit
the plan to the Reserve Bank.
(c) During the term of this Agreement, or as otherwise required by law,
Bancshares and the Bank shall comply with the provisions of section 32 of the
Federal Deposit Insurance Act, as amended (the "FDI Act") (12 U.S.C. 1831i) and
Subpart H of Regulation Y of the Board of Governors (12 C.F.R. Part 225, Subpart
H), with respect to the appointment of any new directors or the hiring or
promotion of any senior executive officers as defined in Regulation O of the
Board of Governors (12 C.F.R. Part 215).
BOARDS OF DIRECTORS' OVERSIGHT
2. (a) Within 90 days of this Agreement, and semi-annually thereafter, the
Bank's board of directors shall review management's adherence to the Bank's
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 the review. These written
findings shall be included in the minutes of the board of directors.
(b) The boards of directors of Bancshares and Bank shall maintain adequate
and complete minutes of all board meetings, approve such minutes, and retain
them for supervisory review.
CAPITAL ADEQUACY
3. (a) Within 60 days of this Agreement, Bancshares and the Bank shall
submit to the Reserve Bank an acceptable joint written plan to achieve and
maintain sufficient capital at the Bank. The plan shall, at a minimum, address
and consider: (i) the Bank's current and future capital requirements, including
compliance with the Capital Adequacy Guidelines of the Board of Governors (12
C.F.R. Part 208, App. A and B); (ii) any planned growth in the Bank's assets;
(iii) the Bank's level of concentrations of credit; (iv) the volume of the
Bank's adversely
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classified assets; (v) the Bank's anticipated level of retained earnings; and
(vi) the source and timing of additional funds to fulfill the future capital
needs of the Bank.
(b) Notwithstanding the provisions of paragraph 3(a) hereof, the Bank
shall: (i) from June 30, 2000 through December 30, 2000 maintain its tier 1
leverage ratio at a level of no less than 6.50 percent; and (ii) at all times
thereafter during the term of this Agreement, maintain its tier 1 leverage ratio
at a level of no less than 7 percent.
OPERATIONS AND EXPENSES REVIEW
4. (a) Within 30 days of this Agreement, the Bank's board of directors
shall engage an outside consultant to conduct an independent review of the
Bank's operations and expenses, and to prepare a written report of findings and
recommendations to the Bank's board of directors. The scope of the outside
consultant's review shall be set forth in an engagement letter, acceptable to
the Reserve Bank and submitted within 20 days of this Agreement. The primary
purpose of this review is to identify the means by which the Bank can improve
its operating performance, with particular attention to achieving reductions in
the Bank's overhead and operating costs. At a minimum, the review shall focus on
the Bank's overhead expenses, including occupancy, personnel, and travel
expenses, the costs associated with raising capital, and data processing and
loan servicing costs. The review of occupancy expenses shall include a review of
the costs and comparable market rates for premises leased by the Bank. A copy of
the consultant's written report shall be forwarded to the Reserve Bank.
(b) Within 30 days of the Bank's board of directors' receipt of the
consultant's written report of findings and recommendations required by
paragraph 4(a) hereof, the Bank's board of directors shall submit a written plan
to the Reserve Bank describing specific actions that the board of directors
proposes to take in order to reduce overhead expenses. The plan shall fully
address the consultant's findings and recommendations.
LOAN POLICIES AND PROCEDURES
5. Within 60 days of this Agreement, the Bank shall submit to the Reserve
Bank acceptable amended written loan policies and procedures that shall, at a
minimum, address, consider, and include the following:
(a) underwriting standards for loans;
(b) the monitoring and reporting of past due loans; and
(c) controlling and monitoring concentrations of credits, including (i)
establishing concentrations of credit limits for acceptable industries
and types of loans; and (ii) managing the risk associated with asset
concentrations.
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ALLOWANCE FOR LOAN AND LEASE LOSSES
6. (a) Within 10 days of this Agreement, the Bank shall eliminate from its
books, by charge-off or collection, all assets or portions of assets classified
"loss" in the report of the examination of the Bank that closed on December 16,
1999 (the "Report of Examination"), which have not been previously collected in
full or charged off. Thereafter, the Bank shall, within 30 days from the receipt
of any federal or state report of examination, charge-off all assets classified
"loss", unless otherwise approved in writing by the Reserve Bank.
(b) The Bank shall maintain, through charges to current operating income,
an adequate allowance for loan and lease losses. The adequacy of the allowance
for loan and lease losses shall be determined in light of the volume of
criticized loans, the current level of past due and nonperforming loans, past
loan loss experience, evaluation of the potential for loan losses in the Bank's
portfolio, current economic conditions, examiner's other criticisms as contained
in the Bank's most recent report of examination, and the requirements of the
Interagency Policy Statement on the Allowance for Loan and Lease Losses, dated
December 22, 1993. The Bank shall conduct, at a minimum, a quarterly assessment
of its allowance for loan and lease losses and shall maintain a written record,
for supervisory review, indicating the methodology used in determining the
amount of the allowance needed.
INTERNAL CONTROLS
7. (a) Within 45 days of this Agreement, the Bank shall bring current all
reconcilements of its general and subsidiary ledger accounts.
(b) Within 60 days of this Agreement, the Bank shall submit to the Reserve
Bank acceptable written policies, programs, and procedures designed to
strengthen its internal controls and to maintain the accuracy of the Bank's
books and records, which shall, at a minimum, address, consider, and include the
following:
(i) reconcilements of general and subsidiary ledger accounts, and timely
resolution of open items;
(ii) extending, approving, monitoring, and reporting of overdrafts and
advances on uncollected funds;
(iii) use of and access to official checks;
(iv) account descriptions for all balance sheet and income statement items;
(v) processing of loan payoffs; and
(vi) cashing checks drawn on dual-signature accounts.
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(c) Within 60 days of this Agreement, the Bank shall review its accounting
procedures for conformance with current industry standards and practices. A
written summary of the review and its conclusions shall be retained for future
supervisory review.
ELECTRONIC FUNDS TRANSFER
8. Within 45 days of this Agreement, the Bank shall submit to the Reserve
Bank acceptable written policies and procedures designed to strengthen the
electronic funds transfer function, which shall address, consider and include
the following: (a) the segregation of duties; (b) an independent settlement
process to ensure the authenticity of the transfers processed; and (c) a secure
environment for electronic funds transfer codes and equipment, including access
restrictions.
AUDIT
9. (a) The Bank's Audit Committee shall consist solely of outside
directors. For the purposes of this Agreement, the term outside director shall
be defined as a director who is not an officer or employee of the Bank.
(b) The Bank's Audit Committee shall: (i) meet at least once every month;
(ii) maintain full and complete minutes of its actions; (iii) report, in
writing, to the full board of directors each month; (iv) address, in a timely
manner, any weaknesses identified by the Bank's internal and external auditors;
and (v) recommend to the full board of directors the scope of outside audits.
(c) The Bank shall revise its written audit policies and procedures to
require that the Bank's internal auditors report directly to the Bank's Audit
Committee on a monthly basis, and that the Bank's external auditors report
directly to the Bank's Audit Committee.
(d) Within 10 days of receipt of its external audit report for fiscal
year-end 1999, the Bank shall provide the Reserve Bank with the audit report and
management letter. Within 45 days of the receipt of the audit report and
management letter, the Bank shall provide the Reserve Bank with its written
plan, including acceptable time frames, to correct any deficiencies noted in the
audit report or management letter.
STRATEGIC PLAN AND BUDGET
10. (a) Within 60 days of this Agreement, the Bank shall submit to the
Reserve Bank a written strategic plan and budget concerning the Bank's proposed
business activities for 2000. This plan shall, at a minimum, provide for or
describe: (i) the responsibilities of the Bank's board of directors regarding
the definition, approval, implementation and monitoring of the strategic plan
and budget, and the procedures designed to ensure that the board of directors
fulfills such responsibilities; (ii) management, lending, and operational
objectives, given the condition of the Bank as reflected in the Report of
Examination and subsequent reports; (iii) an earnings improvement plan, with
emphasis on overhead expenses; (iv) the operating assumptions that form the
bases for major projected income and expense components, and the sources and
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uses of new funds; (v) financial performance objectives, including plans for
asset growth, earnings, liquidity, and capital supported by detailed quarterly
and annual pro forma financial statements, including projected budgets, balance
sheets and income statements; and (vi) the establishment of a monthly review
process to monitor the actual income and expenses of the Bank in comparison to
budgetary projections.
(b) A strategic plan and budget for each calendar year subsequent to 2000
shall be submitted to the Reserve Bank at least one month prior to the beginning
of that calendar year.
DIVIDENDS
11. Bancshares and the Bank shall not declare or pay any dividends without
the prior written approval of the Reserve Bank and the Director of the Board of
Governors' Division of Banking Supervision and Regulation. Requests for approval
shall be received at least 30 days prior to the proposed date for declaration of
dividends and shall contain, but not be limited to, information on consolidated
earnings for the most recent annual period and the last quarter.
DEBT
12. Bancshares 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, and the planned source(s) for debt repayment
and an analysis of the cash flow resources available to meet such debt
repayment.
COMPLIANCE WITH LAWS AND REGULATIONS
13. (a) The Bank shall take the necessary steps, consistent with sound
banking practices, to correct all violations of law and regulation set forth in
the Report of Examination.
(b) The Bank shall immediately initiate an affirmative compliance program
in order to ensure compliance with the provisions of all applicable laws, rules,
and regulations. Pursuant thereto, the management of the Bank shall familiarize
itself with the applicable provisions of the Federal Reserve Act and the
regulations promulgated thereunder, and the laws of the Commonwealth of
Pennsylvania.
COMPLIANCE WITH AGREEMENT
14. (a) The Bank's Audit Committee shall monitor and coordinate the Bank's
compliance with the provisions of this Agreement.
(b) Within 45 days of this Agreement, and, thereafter, within 30 days after
the end of each quarter following the date of this Agreement, the Bank's Audit
Committee shall submit a written progress report to the Bank's board of
directors setting forth in detail the actions taken to comply with each
provision of this Agreement and the results of those actions.
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(c) Within 15 days after its receipt from the Bank's Audit Committee, the
Bank's board of directors shall forward a copy of the report described in
paragraph 14(b) hereof, with any additional comments made by the board of
directors, to the Reserve Bank. The Bank's board of directors shall certify in
writing to the Reserve Bank that each director has reviewed each quarterly
progress report required by this paragraph. Such reports may be discontinued
when the Reserve Bank, in writing, releases the Bank from making further
reports.
APPROVAL OF PLANS, POLICIES, PROCEDURES, PROGRAMS, AND ENGAGEMENT
15. (a) The plans, policies, procedures, programs, and engagement letter
required by paragraphs 3(a), 4(a), 5, 7(b), and 8 hereof shall be submitted to
the Reserve Bank for review and approval. Acceptable plans, policies,
procedures, and programs and an acceptable engagement letter shall be submitted
to the Reserve Bank within the time periods set forth in this Agreement. Where
applicable, Bancshares and the Bank shall adopt all approved plans, policies,
procedures, and programs and the approved engagement letter within 10 days of
approval by the Reserve Bank and then shall fully comply with them. During the
term of this Agreement, Bancshares and the Bank shall not amend or rescind the
approved plans, policies, procedures, and programs and the approved engagement
letter without the prior written approval of the Reserve Bank.
(b) The Bank's board of directors shall review all plans, policies,
procedures and programs annually.
COMMUNICATIONS
16. All communications regarding this Agreement shall be sent to:
(a) Xxxxxxx X. Xxxxxxx
Senior Vice President
Supervision, Regulation, and Credit
Federal Reserve Bank of Philadelphia
00 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
(b) Xxxx Xxxxxxxx
Chairman of the Board, President and CEO
United Bank of Philadelphia
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
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MISCELLANEOUS
17. Notwithstanding any provision of this Agreement to the contrary, the
Reserve Bank may, in its discretion, grant written extensions of time, to
Bancshares and the Bank to comply with any provision of this Agreement.
18. The provisions of this Agreement shall be binding upon Bancshares and
the Bank and all of their institution-affiliated parties, in their capacities as
such, and their successors and assigns.
19. Each provision of this Agreement shall remain effective and enforceable
until stayed, modified, terminated or suspended by the Reserve Bank.
20. The provisions of this Agreement shall not bar, estop, or otherwise
prevent the Board of Governors or any other federal or state agency from taking
any other action affecting Bancshares or the Bank or any of their current or
former institution-affiliated parties and their successors and assigns.
21. This Agreement is a "written agreement" for the purposes of 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 23rd day of February, 2000.
United Bancshares, Inc. Federal Reserve Bank of Philadelphia
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------- ----------------------------
United Bank of Philadelphia
By: /s/ Xxxx X. Xxxxxxxx
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The undersigned directors of Bancshares and the Bank individually
acknowledge reading the foregoing Agreement and approve of the consent thereto
by Bancshares and the Bank.
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxx Xxxxxxxxxx X. Xxxxxxx
/s/ X. Xxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxxx
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X. Xxxx Xxxxxxxx Xxxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxx
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Xxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
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Xxxxx X. Xxxxxxx Xxxxxxx X. Xxxxx
/s/ X. Xxxxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxxx
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X. Xxxxxxxx Xxxxxxx Xxxxxx X. Xxxxxx
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