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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 )
)
BAY VIEW CAPITAL CORPORATION )
San Mateo, California )
) Docket No.
and ) OO-018-WA/RB-HC
)
FEDERAL RESERVE BANK OF SAN FRANCISCO )
San Francisco, California )
)
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WHEREAS, in recognition of their common goal to restore and maintain
the financial soundness of Bay View Capital Corporation, San Mateo, California
("Bay View"), a registered bank holding company, Bay View and the Federal
Reserve Bank of San Francisco, San Francisco, California, (the "Reserve Bank")
have mutually agreed to enter into this Written Agreement (the "Agreement");
and
WHEREAS, on September 28, 2000, the Board of Directors of Bay View, by
unanimous written consent, adopted a resolution:
(1) authorizing and directing Edward H Sondker to enter
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into this Agreement on behalf of Bay View and consenting to compliance by the
Board of Directors of Bay View and Bay View's institution-affiliated parties,
as defined by sections 3(u) Andy 8(b)(3) of the Federal Deposit Insurance Act,
as amended (the "FDI Act") (12 U.S.C. 1813(u) and 1818(b)(3)), with each and
every provision of this Agreement; and
(2) waiving any and all rights that Bay View may have pursuant
to section 8 of the FDI Act ( 12 U.S.C. 1818): to a hearing for the purpose of
taking evidence on any matters set forth in this Agreement; to judicial review
of this Agreement; and to challenge or contest, in any manner, the basis,
issuance, validity, terms, effectiveness or enforceability of this Agreement or
any provision hereof.
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NOW, THEREFORE, the Reserve Bank and Bay View agree as follows:
Dividends
1. Bay View shall not declare or pay any cash or stock dividends or
make any interest payments on its trust preferred stock without the prior
written approval of the Reserve Bank and the Director of the Division of
Banking Supervision and Regulation, Board of Governors of the Federal
Reserve System (the "Director"). Requests for approval shall be received
at least thirty (30) days prior to the proposed date for declaration of
dividends. The request for approval shall contain, but not be limited to:
(a) information on consolidated earnings for the most recent annual period
and the last quarter;
(b) current and projected information on earnings, cash flow, capital levels
and asset quality;
(c) a review of the capacity of Bay View's operating cash flow to
accommodate any proposed dividend payment; specifically, whether the
proposed dividend payment is covered by Bay View's operating earnings
and is consistent with the Board of Governors of the Federal Reserve
System (the "Board of Governors") Policy Statement, dated November 14,
1985, concerning the payment of cash dividends by bank holding
companies;
(d) a determination that the dividend payment will not place undue pressure
on the capital resources and the liquidity of the Bay View Bank, San
Mateo, California (the "Bank"); and
(e) such other matters as the Reserve Bank or the Director may require.
Capital Adequacy
2. Within sixty (60) days of this Agreement, Bay View shall submit
to the Reserve Bank an acceptable plan to maintain an adequate capital
position for the consolidated organization. The plan shall, at a minimum,
take into account and consider:
(a) The current and future capital requirements of the
consolidated organization, particularly in view of :
(i) the volume of adversely classified assets at the Bank;
and
(ii) risk profile of the Bank's asset and liability
structure;
(b) the requirements of 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);
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(c) the adequacy of the Bank's loan loss reserves and its effects on
the consolidated financial condition of Bay View, including, but not limited to:
(i) the methodology used by Bay View to ensure that the funding
by the Bank of such reserves is at a level sufficient to address
its criticized and classified assets;
(ii) the adequacy of the Bank's internal loan review program;
(iii) the volume of assets criticized and classified by federal
or state examiners or through internal means;
(iv) the steps that Bay View takes, or will take, to address
deficiencies in the Bank's loan loss reserves during the quarter
that a deficiency is recognized; and
(v) the maintenance of written documentation by the board of
directors of Bay View indicating the factors considered and the
conclusions reached by the board in determining the adequacy of
the Bank's loan loss reserves and the sufficiency of the
methodology used by the Bank to set such reserves;
(d) the anticipated levels of earnings at the Bank, with particular
attention to maintaining an adequate loan loss reserve at the Bank;
(e) the source and timing of additional funds needed to fulfill all
current and future capital needs of the Bank and the consolidated organization;
(f) Federal supervisory requests for additional capital;
(g) a methodology for the internal measurement of capital adequacy,
which incorporates, at a minimum, target capital levels, the risk profile and
portfolio mix, growth strategies, competitive influences, market valuations and
dividend parameters of the Bank and Bay View;
(h) the development of procedures for monitoring on a monthly basis
the capital adequacy of the Bank and the consolidated organization; and
(i) the responsibility of Bay View to act as a source of strength to
the Bank and, in connection therewith, to use its assets to provide whatever
capital support to the Bank as may be required by the Reserve Bank in a manner
consistent with the Board of Governors Policy Statement on the responsibilities
of bank holding companies to act as a source of strength to their bank
subsidiaries, dated April 24, 1987.
3. Bay View shall take all actions necessary to ensure that the Bank
takes all action required of it under the Bank's Capital Plan.
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Debt and Stock Redemption
4. (a) Bay View shall not incur any debt including, but not limited to,
increasing the principal balance of any category of its indebtedness for monies
borrowed above the levels outstanding as of June 30,2000, without the prior
written approval of the Reserve Bank. The requirements of this paragraph shall
not apply to accrued interest, the rollover or capitalization of interest or to
obligations incurred in the ordinary course of business, including, but not
limited to, trade receivables and accrued wages and taxes.
(b) All requests for prior written approval shall contain
at a minimum, a statement regarding the purpose of the debt or increase, its
terms and the planned sources for debt repayment and an analysis of the cash
flow resources available to meet such debt repayment.
5. Bay View shall not redeem any stock without the prior written approval
of the Reserve Bank.
Debt Service Plan
6. On or before October 31, 2000, Bay View shall submit to the Reserve
Bank an acceptable plan for the 4th quarter of 2000 to service its outstanding
debt without incurring any additional debt, or disadvantaging the Bank. Further,
within ninety (90) days of this Written Agreement, Bay View shall submit to the
Reserve Bank an acceptable plan for the year 2001 and beyond, as needed, to
service its outstanding debt without incurring any additional debt, or
disadvantaging the bank. The plans shall, at a minimum, specifically address and
consider:
(a) reductions in outstanding debt and periodic payments of principal
and interest;
(b) Bay View's cash flow projections;
(c) the Bank's anticipate earnings, asset growth, capital, and
dividend projections;
(d) alternative sources of funds to be used to make all necessary
debt reductions;
(e) appropriate financial projections; and
(f) the actions Bay View will take to maintain compliance with the
terms of its debt agreements.
Cash Flow Projections
7. Within forty-five (45) days of this Agreement, Bay View shall
submit to the Reserve Bank a written statement of Bay View's planned sources and
uses of cash for debt retirement, operating expenses, and other purposes for the
current fiscal year.
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Thereafter, by January 30 of each year after this Agreement, Bay View shall
submit to the Reserve Bank such written statement for that fiscal-year.
Violations of Law
8. (a) Bay View shall immediately take all necessary steps, consistent
with sound banking practices, to cause the Bank to eliminate and/or correct the
violations of sections 23A and 23B of the Federal Reserve Act (12 U.S.C. 371C
and 371c-1) described in the Report of Inspection of Bay View as of June
30,200O.
(b) Bay View shall not engage, directly or indirectly, in any
violation or in any activity resulting in a violation of sections 23A and 23B of
the Federal Reserve Act.
(c) Bay View shall immediately initiate an affirmative compliance
program in order to ensure Bay View's and the Bank's full compliance with the
provisions of sections 23A and 23B. Pursuant thereto, the management of Bay View
shall familiarize itself with the applicable provisions of sections 23A and 23B
and this Agreement, and shall consult with the Reserve Bank concerning questions
or obligations thereunder.
Board Oversight
9. (a) Within forty-five (45) days of this Agreement, the board of
directors of Bay View shall: (i) conduct and complete a review of the quality,
comprehensiveness, uniformity and timeliness of the information provided to the
board of directors for the purpose of carrying out its responsibilities; and
(ii) prepare and submit a report and recommendations to the Reserve Bank that
details the findings of this review and the actions to be taken to correct any
deficiencies noted during the review.
(b) Bay View's board of directors shall meet at least monthly and
comprehensive minutes of all board meetings shall be maintained and retained for
subsequent supervisory review.
10. During the term of this Agreement or as otherwise required by law, Bay
View shall comply with the provisions of section 32 of the FDI Act (12 U.S.C.
183 1 i) 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 0
of the Board of Governors (12 C.F.R. Part 215).
Review of Plans and Projections
11. The plans required by paragraphs 2 and 6, hereof, shall be submitted
to the Reserve Bank for review and approval. Plans shall be submitted to the
Reserve Bank within the time periods set forth in this Agreement. Bay View shall
adopt all approved plans within ten (10) days of approval by the Reserve Bank
and then shall fully comply with them. During the term of this Agreement, Bay
View shall not amend or rescind the approved plans without the prior written
approval of the Reserve Bank.
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Monthly Progress Reports
12. Within thirty (30) days after the end of each calendar month
following the date of this Agreement, Bay View shall furnish to the Reserve Bank
written progress reports detailing the form and manner of all actions taken to
secure compliance with this Agreement. Such reports may be discontinued when the
corrections required by this Agreement has been accomplished and the Reserve
Bank releases Bay View from making further reports.
13. Bay View shall submit to the Reserve Bank a copy of all written
progress reports submitted by the Bank to the Office of the Comptroller of the
Currency (the "OCC") pursuant to any supervisory agreement or order, entered
into between the Bank and the OCC.
Communications
14. All communications regarding this Agreement shall be sent to:
(a) Mr. Philip Ryan
Assistant Vice President
Federal Reserve Bank of San Francisco
101 Market Street
San Francisco, CA 94105
(b) John R. McKean
Chairman of the Board
Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404-2467
Miscellaneous
15. Notwithstanding any provision of this Agreement to the contrary,
the Reserve Bank may in its discretion, grant written extensions of time to Bay
View to comply with any provision of this Agreement.
16. The provisions of this Agreement shall be binding upon Bay View
and its successors and assigns. It is understood that any institution-affiliated
party of Bay View that takes action, fails to take action, or otherwise causes
Bay View to violate or fail to comply with any provision of this Agreement could
be subject to further action under Section 8 of the FDI Act.
17. Each provision of this Agreement shall remain effective and
enforceable until stayed, modified, terminated or suspended by the Reserve Bank.
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18. Each provision of this Agreement shall not bar, estop, or
otherwise prevent the Board of Governors of any other federal or state agency
from taking any other action affecting Bay View of any of their current and
former institution-affiliated parties and their successors and assigns.
19. 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 29 day of September, 2000.
Bay View Capital Corporation Federal Reserve Bank of San Francisco
By: /s/ Edward H. Sondker By: /s/ Philip Ryan
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The undersigned directors of Bay View individually acknowledge reading
the foregoing Agreement and approve of the consent thereto by Bay View.
/s/ John R. McKean /s/ Paula R. Collins
--------------------------------- --------------------------------
John R. McKean Paula R. Collins
/s/ Thomas M. Foster /s/ Robert M. Greber
--------------------------------- --------------------------------
Thomas M. Foster Robert M. Greber
/s/ Edward H. Sondker /s/ Blake W. Winchell
--------------------------------- --------------------------------
Edward H. Sondker Blake W. Winchell
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The undersigned directors of Bay View individually acknowledge reading
the foregoing Agreement and approve of the consent thereto by Bay View.
/s/ John R. McKean
--------------------------------- ________________________________
John R. McKean Paula R. Collins
_________________________________ ________________________________
Thomas M. Foster Robert M. Greber
_________________________________ ________________________________
Wayne L. Knyal George H. Krauss
_________________________________ ________________________________
Edward H. Sondker Blake W. Winchell
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The undersigned directors of Bay View individually acknowledge reading
the foregoing Agreement and approve of the consent thereto by Bay View.
/s/ Paula R. Collins
_________________________________ --------------------------------
John R. McKean Paula R. Collins
_________________________________ ________________________________
Thomas M. Foster Robert M. Greber
_________________________________ ________________________________
Wayne L. Knyal George H. Krauss
_________________________________ ________________________________
Edward H. Sondker Blake W. Winchell
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The undersigned directors of Bay View individually acknowledge reading
the foregoing Agreement and approve of the consent thereto by Bay View.
_________________________________ ________________________________
John R. McKean Paula R. Collins
/s/ Thomas M. Foster
--------------------------------- ________________________________
Thomas M. Foster Robert M. Greber
_________________________________ ________________________________
Wayne L. Knyal George H. Krauss
_________________________________ ________________________________
Edward H. Sondker Blake W. Winchell
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The undersigned directors of Bay View individually acknowledge reading
the foregoing Agreement and approve of the consent thereto by Bay View.
_________________________________ ________________________________
John R. McKean Paula R. Collins
/s/ Robert M. Greber 9/15/00
_________________________________ --------------------------------
Thomas M. Foster Robert M. Greber
_________________________________ ________________________________
Wayne L. Knyal George H. Krauss
_________________________________ ________________________________
Edward H. Sondker Blake W. Winchell
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The undersigned directors of Bay View individually acknowledge reading
the foregoing Agreement and approve of the consent thereto by Bay View.
_________________________________ ________________________________
John R. McKean Paula R. Collins
_________________________________ ________________________________
Thomas M. Foster Robert M. Greber
_________________________________ ________________________________
Wayne L. Knyal George H. Krauss
/s/ Blake W. Winchell
_________________________________ --------------------------------
Edward H. Sondker Blake W. Winchell
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