Exhibit
10.1


 


UNITED STATES OF AMERICA


BEFORE THE


BOARD OF GOVERNORS OF THE FEDERAL RESERVE
SYSTEM


WASHINGTON, D.C.


 


STATE OF CALIFORNIA


DEPARTMENT OF FINANCIAL INSTITUTIONS


SACRAMENTO, CALIFORNIA


 


	
  Written
  Agreement by and among

  	
   

  
	
   

  	
   

  
	
  HERITAGE
  COMMERCE CORP 

  	
  Docket
  Nos.

  	
  10-023-WA/RB-HC

  
	
  San
  Jose, California

  	
   

  	
  10-023-WA/RB-SM

  
	
   

  	
   

  
	
  HERITAGE
  BANK OF COMMERCE

  	
   

  
	
  San
  Jose, California 

  	
   

  
	
   

  	
   

  
	
  FEDERAL
  RESERVE BANK OF

  	
   

  
	
  SAN
  FRANCISCO

  	
   

  
	
  San
  Francisco, California

  	
   

  
	
   

  	
   

  
	
  and
  

  	
   

  
	
   

  	
   

  
	
  STATE
  OF CALIFORNIA

  	
   

  
	
  DEPARTMENT
  OF FINANCIAL

  	
   

  
	
  INSTITUTIONS

  	
   

  
	
  Sacramento,
  California

  	
   

  



 


WHEREAS, in
recognition of their common goal to maintain the financial soundness of
Heritage Commerce Corp, San Jose, California (“Heritage”), a registered bank
holding company, and its subsidiary bank, Heritage Bank of Commerce, San Jose,
California (the “Bank”), a state chartered bank that is a member of the Federal
Reserve System, Heritage, the Bank, the Federal Reserve Bank of San Francisco
(the “Reserve Bank”), and the State of California Department of Financial
Institutions (the “Department”) have mutually agreed to enter into this Written
Agreement (the “Agreement”); and


 


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WHEREAS, on February 17,
2010, Heritage’s and the Bank’s boards of directors, at duly constituted
meetings, adopted resolutions authorizing and directing Walter Kaczmarek and Walter
Kaczmarek to consent to this Agreement on behalf of Heritage and the Bank,
respectively, and consenting to compliance with each and every applicable
provision of this Agreement by Heritage, the Bank, and their
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, Heritage, the Bank, the Reserve Bank, and the
Department agree as follows:


 


Source of Strength


 


1.             The board of directors of Heritage shall
take appropriate steps to fully utilize Heritage’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 ensure that the Bank complies with this Agreement and any
other supervisory action taken by the Bank’s federal regulators or the
Department.


 


Credit Risk Management


 


2.             Within 60 days of this Agreement, the
Bank shall submit to the Reserve Bank and the Department an acceptable written
plan to strengthen credit risk management practices. The plan shall, at a
minimum, address, consider, and include:


 


(a)           Procedures to limit and manage
concentrations of credit that are consistent with the Interagency Guidance on
Concentrations in Commercial Real Estate Lending, Sound Risk Management
Practices, dated December 12, 2006 (SR 07-1);


 


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(b)           strategies to minimize credit losses and
reduce the level of problem assets; and


 


(c)           revised appraisal review procedures to
ensure the independence of the appraisal review function.


 


Asset Improvement


 


3.             The Bank shall not, directly or
indirectly, extend, renew, or restructure any credit to or for the benefit of
any borrower, including any related interest of the borrower, whose loans or
other extensions of credit are criticized in the report of the examination of
the Bank conducted by the Reserve Bank that commenced on August 17, 2009
(the “Report of Examination”) or in any subsequent report of examination,
without the prior approval of a majority of the full board of directors or a
designated committee thereof. The board of directors or its committee shall
document in writing the reasons for the extension of credit, renewal, or
restructuring, specifically certifying that: (i) the Bank’s risk
management policies and practices for loan workout activity are acceptable; (ii) the
extension of credit is necessary to improve and protect the Bank’s interest in
the ultimate collection of the credit already granted and maximize its
potential for collection; (iii) the extension of credit reflects prudent
underwriting based on reasonable repayment terms and is adequately secured; and
all necessary loan documentation has been properly and accurately prepared and
filed; (iv) the Bank has performed a comprehensive credit analysis
indicating that the borrower has the willingness and ability to repay the debt
as supported by an adequate workout plan, as necessary; and (v) the board
of directors or its designated committee reasonably believes that the extension
of credit will not impair the Bank’s interest in obtaining repayment of the
already outstanding credit and that the extension of credit or renewal will be
repaid according to its terms. The written certification shall be made a part
of the minutes of the 


 


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meetings
of the board of directors or its committee, as appropriate, and a copy of the
signed certification, together with the credit analysis and related information
that was used in the determination, shall be retained by the Bank in the
borrower’s credit file for subsequent supervisory review. For purposes of this
Agreement, the term “related interest” is defined as set forth in section 215.2(n) of
Regulation O of the Board of Governors (12 C.F.R. § 215.2(n)).


 


4.             (a)           Within
60 days of this Agreement, the Bank shall submit to the Reserve Bank and the
Department an acceptable written plan designed to improve the Bank’s position
through repayment, amortization, liquidation, additional collateral, or other
means on each loan or other asset in excess of $2 million, including other real
estate owned (“OREO”), that (i) is past due as to principal or interest
more than 90 days as of the date of this Agreement; (ii) is on the Bank’s
problem loan list; or (iii) was adversely classified in the Report of
Examination. In developing the plan for each loan, the Bank shall, at a
minimum, review, analyze, and document the financial position of the borrower,
including source of repayment, repayment ability, and alternative repayment
sources, as well as the value and accessibility of any pledged or assigned
collateral, and any possible actions to improve the Bank’s collateral position.


 


(b)           Within 30 days of the date that any
additional loan or other asset in excess of $2 million, including OREO, becomes
past due as to principal or interest for more than 90 days, is on the Bank’s
problem loan list, or is adversely classified in any subsequent report of
examination of the Bank, the Bank shall submit to the Reserve Bank and the
Department an acceptable written plan to improve the Bank’s position on such
loan or asset.


 


(c)           Within 30 days after the end of each
calendar quarter thereafter, the Bank shall submit a written progress report to
the Reserve Bank and the Department to update each asset improvement plan,
which shall include, at a minimum, the carrying value of the loan or 


 


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other
asset and changes in the nature and value of supporting collateral, along with
a copy of the Bank’s current problem loan list, extension report, and past
due/non-accrual report. The board of directors shall review the progress
reports before submission to the Reserve Bank and the Department and shall
document the review in the minutes of the board of directors’ meetings.


 


Allowance for Loan and Lease Losses


 


5.             (a)           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 and the Department.


 


(b)           The Bank shall maintain a sound process
for determining, documenting, and recording an adequate ALLL in accordance with
regulatory reporting instructions and relevant supervisory guidance, including
the Interagency Policy Statements on the Allowance for Loan and Lease Losses,
dated July 2, 2001 (SR 01-17 (Sup)) and December 13, 2006 (SR 06-17).


 


(c)           Within 60 days of this Agreement, the
Bank shall submit to the Reserve Bank and the Department an acceptable written
program for the maintenance of an adequate ALLL. The program shall include
policies and procedures to ensure adherence to the ALLL methodology and provide
for periodic reviews and updates to the ALLL methodology, as appropriate. The
program shall also provide for a review of the ALLL by the board of directors
on at least a quarterly calendar basis. Any deficiency found in the ALLL shall
be remedied in the quarter it is discovered, prior to the filing of the
Consolidated Reports of Condition and Income, by additional provisions. The
board of directors shall maintain written documentation of its review,
including the factors considered and conclusions reached by the Bank in
determining the adequacy of the ALLL. During the term of this Agreement, the
Bank shall submit to the Reserve 


 


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Bank
and the Department, within 30 days after the end of each calendar quarter, a
written report regarding the board of directors’ quarterly review of the ALLL
and a description of any changes to the methodology used in determining the
amount of ALLL for that quarter.


 


Capital Plan


 


6.             Within 60 days of this Agreement,
Heritage and the Bank shall submit to the Reserve Bank and the Department an
acceptable joint written plan to maintain sufficient capital at Heritage on a
consolidated basis, and the Bank as a separate legal entity on a stand-alone
basis. The plan shall, at a minimum, address, consider, and include:


 


(a)           Heritage’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);


 


(b)           the Bank’s current and future capital
requirements, including compliance with the Capital Adequacy Guidelines for
State Member Banks: Risk-Based Measure and Tier 1 Leverage Measure, Appendices
A and B of Regulation H of the Board of Governors (12 C.F.R. Part 208,
App. A and B);


 


(c)           the adequacy of the Bank’s capital,
taking into account the volume of classified credits, concentrations of credit,
ALLL, current and projected asset growth, and projected retained earnings;


 


(d)           the source and timing of additional funds
to fulfill the Bank’s future capital requirements; and


 


(e)           the requirements of section 225.4(a) of
Regulation Y of the Board of Governors that Heritage serve as a source of
strength to the Bank.


 


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7.             Heritage and the Bank shall notify the
Reserve Bank and the Department, in writing, no more than 30 days after the end
of any quarter in which any of Heritage’s consolidated capital ratios or the
Bank’s capital ratios (total risk-based, Tier 1, or leverage) fall below the
approved capital plan’s minimum ratios. Together with the notification,
Heritage and the Bank, as appropriate, shall submit an acceptable written plan
that details the steps Heritage or the Bank, as appropriate, will take to
increase Heritage’s or the Bank’s capital ratios to or above the approved
capital plan’s minimums.


 


Earnings Plan and Budget


 


8.             (a)           Within
60 days of this Agreement, the Bank shall submit to the Reserve Bank and the
Department a written business plan for 2010 to improve the Bank’s earnings and
overall condition. The plan, at a minimum, shall provide for or describe:


 


(i)                                     a realistic and comprehensive budget for
calendar year 2010, including income statement and balance sheet projections;
and


 


(ii)                                  a description of the operating
assumptions that form the basis for, and adequately support, major projected
income, expense, and balance sheet components.


 


(b)           A business plan and budget for each
calendar year subsequent to 2010 shall be submitted to the Reserve Bank and the
Department at least 30 days prior to the beginning of that calendar year.


 


Liquidity/Funds Management


 


9.             Within 60 days of this Agreement, the
Bank shall submit to the Reserve Bank and the Department an acceptable enhanced
written plan designed to improve management of the Bank’s liquidity position
and funds management practices. The plan shall, at a minimum, 


 


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address,
consider, and include measures to reduce reliance on short-term wholesale
funding, including brokered deposits.


 


Dividends


 


10.           (a)           Heritage
and the Bank shall not declare or pay any dividends without the prior written
approval of the Reserve Bank, the Director of the Division of Banking
Supervision and Regulation of the Board of Governors (the “Director”), and the
Department.


 


(b)           Heritage shall not take any other form of
payment representing a reduction in capital from the Bank without the prior
written approval of the Reserve Bank and the Department.


 


(c)           Heritage 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, the Director, and the Department.


 


(d)           All requests for prior approval shall be
received 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, as appropriate, on Heritage’s
capital, earnings, and cash flow; the Bank’s capital, asset quality, earnings
and ALLL needs; and identification of the sources of funds for the proposed
payment or distribution. Heritage and the Bank, as appropriate, 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).


 


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Debt and Stock Redemption


 


11.           (a)           Heritage
shall not, directly or indirectly, incur, increase, or guarantee any debt
without the prior written approval of the Reserve Bank and the Department. 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)           Heritage shall not, directly or
indirectly, purchase or redeem any shares of its stock without the prior
written approval of the Reserve Bank and the Department. 


 


Compliance with Laws and Regulations


 


12.           (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, Heritage and the Bank
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.) and also provide written notice to the Department. Heritage and
the Bank shall not appoint any individual to Heritage’s or the Bank’s board of
directors or employ or change the responsibilities of any individual as a
senior executive officer if the Reserve Bank or the Department notifies
Heritage or the Bank of disapproval within the time limits prescribed by
Subpart H of Regulation Y.


 


(b)           Heritage and the Bank 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).


 


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Compliance with the Agreement


 


13.           (a)           Within
10 days of this Agreement, the boards of directors of Heritage and the Bank
shall appoint a joint committee (the “Compliance Committee”) to monitor and
coordinate Heritage’s and the Bank’s compliance with the provisions of this
Agreement. The Compliance Committee shall include a majority of outside
directors who are not executive officers or principal shareholders of Heritage
and the Bank, as defined in sections 215.2(e)(1) and 215.2(m)(1) of
Regulation O of the Board of Governors (12 C.F.R. §§ 215.2(e)(1) and
215.2(m)(1)). At a minimum, the Compliance Committee shall meet at least
monthly, keep detailed minutes of each meeting, and report its findings to the
boards of directors of Heritage and the Bank.


 


(b)           Within 30 days after the end of each
calendar quarter following the date of this Agreement, Heritage and the Bank
shall submit to the Reserve Bank and the Department written progress reports
detailing the form and manner of all actions taken to secure compliance with
this Agreement and the results thereof.


 


Approval and Implementation of Plans and Program


 


14.           (a)           The
Bank and, as applicable, Heritage shall submit written plans and a program that
are acceptable to the Reserve Bank and the Department within the applicable
time periods set forth in paragraphs 2, 4, 5(c), 6, 7, and 9 of this Agreement.


 


(b)           Within 10 days of approval by the Reserve
Bank and the Department, the Bank shall adopt the approved plans and program.
Upon adoption, the Bank shall promptly implement the approved plans and
program, and thereafter fully comply with them.


 


(c)           During the term of this Agreement, the
approved plans and program shall not be amended or rescinded without the prior
written approval of the Reserve Bank and the Department.


 


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Communications


 


15.           All communications regarding this
Agreement shall be sent to:


 


(a)           Mr. David E. Reiser

                Examining
Officer

                Banking
Supervision & Regulation

                Federal Reserve
Bank of San Francisco

                101 Market
Street

                Mail Stop 920

                San Francisco,
California 94105


 


(b)           Mr. Scott Cameron

                Deputy
Commissioner for Northern Region

                State of
California

                Department of
Financial Institutions

                1810 13th
Street

                Sacramento,
California 95811


 


(c)           Mr. Jack W. Conner

                Chairman of the
Boards of Directors

                Heritage
Commerce Corp

                Heritage Bank
of Commerce

                150 Almaden
Boulevard

                San Jose,
California 95113


 


Miscellaneous


 


16.           Notwithstanding any provision of this
Agreement, the Reserve Bank and the Department may, in their sole discretion, grant
written extensions of time to Heritage and the Bank to comply with any
provision of this Agreement.


 


17.           The provisions of this Agreement shall be
binding upon Heritage, the Bank, and their institution-affiliated parties, in
their capacities as such, and their successors and assigns.


 


18.           Each provision of this Agreement shall
remain effective and enforceable until stayed, modified, terminated, or
suspended in writing by the Reserve Bank and the Department.


 


19.           The provisions of this Agreement shall not
bar, estop, or otherwise prevent the Board of Governors, the Reserve Bank, the
Department, or any other federal or state agency 


 


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from
taking any other action affecting Heritage, the Bank, or any of their current
or former institution-affiliated parties and their successors and assigns.


 


20.           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).


 


21.           If the Department determines that the
Bank has violated any substantive provision of this Agreement, the Bank shall,
for the purposes of the California Financial Code, be deemed to be conducting
its business in an unsafe or unauthorized manner.


 


IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the 17th day of February, 2010.


 


	
  HERITAGE COMMERCE CORP

  	
  FEDERAL
  RESERVE BANK

  
	
   

  	
   

  	
  OF
  SAN FRANCISCO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Walter Kaczmarek

  	
   

  	
   

  	
   

  
	
   

  	
  President
  and Chief Executive Officer

  	
  By:

  	
  /s/
  Kent Wiser

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  HERITAGE BANK OF COMMERCE

  	
  STATE
  OF CALIFORNIA DEPARTMENT

  
	
   

  	
   

  	
  OF
  FINANCIAL INSTITUTIONS

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Walter Kaczmarek

  	
   

  	
   

  	
   

  
	
   

  	
  President
  and Chief Executive Officer

  	
  By:

  	
  /s/
  Scott Cameron

  



 


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