EXHIBIT 10.1


 


UNITED STATES OF AMERICA

BEFORE THE

BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM

WASHINGTON, D.C.


 


STATE OF GEORGIA

DEPARTMENT OF BANKING AND FINANCE

ATLANTA, GEORGIA


 




	
  Written Agreement by and
  between

  	
   

  
	
   

  	
  Docket No. 10-040-WA/RB-HC

  
	
  ATLANTIC SOUTHERN FINANCIAL
  GROUP, INC.

  	
   

  
	
  Macon, Georgia

  	
   

  
	
   

  	
   

  
	
  FEDERAL RESERVE BANK OF ATLANTA 

  Atlanta, Georgia

  	
   

  
	
   

  	
   

  
	
  and

  	
   

  
	
   

  	
   

  
	
  BANKING COMMISSIONER OF THE
  STATE OF GEORGIA

  	
   

  
	
  Atlanta, Georgia

  	
   

  






 


WHEREAS, Atlantic Southern Financial Group, Inc., Macon,
Georgia (“Atlantic”), a registered bank holding company, owns and controls
Atlantic Southern Bank, Macon, Georgia (the “Bank”), a state chartered
nonmember bank, and a nonbank subsidiary;


 


WHEREAS, it is the common goal of Atlantic, the Federal
Reserve Bank of Atlanta (the “Reserve Bank”), and the Banking Commissioner of
the State of Georgia (the “Commissioner”) to maintain the financial soundness
of Atlantic so that Atlantic may serve as a source of strength to the Bank;


 


WHEREAS, Atlantic, the Reserve Bank, and the Commissioner
have mutually agreed to enter into this Written Agreement (the “Agreement”); and


 

















 


WHEREAS, on              ,
2010, the board of directors of Atlantic, at a duly constituted meeting, adopted
a resolution authorizing and directing                                             to
enter into this Agreement on behalf of Atlantic, and consenting to compliance
with each and every provision of this Agreement by Atlantic 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, Atlantic, the Reserve Bank, and the
Commissioner agree as follows:


 


Source of Strength


 


1.             The
board of directors of Atlantic shall take appropriate steps to fully utilize
Atlantic’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
the Cease and Desist Order entered into with the Federal Deposit Insurance
Corporation (the “FDIC”) and the Commissioner on September 11, 2009 and
any other supervisory action taken by the Bank’s federal or state regulators.


 


Dividends and Distributions


 


2.             (a)            Atlantic 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
Commissioner.


 


(b)            Atlantic
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 and the
Commissioner.


 


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(c)           Atlantic
and its nonbank subsidiary 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
Commissioner.


 


(d)           All
requests for prior approval shall be received by the Reserve Bank and the
Commissioner 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 Atlantic’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, Atlantic 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) and the
Georgia Department of Banking and Finance Statement of Policies. 


 


Debt and Stock Redemption


 


3.             (a)            Atlantic and any nonbank subsidiary shall not, directly or indirectly, incur,
increase, or guarantee any debt without the prior written approval of the
Reserve Bank and the Commissioner. 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)            Atlantic
shall not, directly or indirectly, purchase or redeem any shares of its stock
without the prior written approval of the Reserve Bank and the Commissioner.


 


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Capital Plan


 


4.             Within
60 days of this Agreement, Atlantic shall submit to the Reserve Bank and the
Commissioner an acceptable written plan to maintain sufficient capital at
Atlantic 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
FDIC;


 


(b)           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;


 


(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 or state regulator; and


 


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


 


5.             Atlantic
shall notify the Reserve Bank and the Commissioner, in writing, no more than 30
days after the end of any quarter in which any of the consolidated organization’s
capital ratios fall below the approved plan’s minimum ratios. Together with the
notification, Atlantic shall submit an acceptable capital plan that details the
steps Atlantic will take to increase the consolidated organization’s capital
ratios to or above the approved plan’s minimums.


 


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Affiliate Transactions


 


6.             (a)            Within 30 days of this Agreement, Atlantic shall submit to the Reserve Bank
an acceptable written plan to reimburse the Bank for all payments made by the
Bank in violation of sections 23A and 23B of the Federal Reserve Act (12 U.S.C.
§§371c and 371c-1). The plan shall specify the amount(s) to be reimbursed
or paid to the Bank, the method used to calculate the amount including interest,
and a schedule for when the reimbursement will be made.


 


(b)           Atlantic
shall take all necessary actions to ensure that the Bank complies with sections
23A and 23B of the Federal Reserve Act (12 U.S.C. §§ 371c and 371c-1) and
Regulation W of the Board of Governors (12 C.F.R. Part 223) in all
transactions between the Bank and its affiliates, including but not limited to
Atlantic and its nonbank subsidiary.


 


(c)           Atlantic
and its nonbank subsidiary shall not cause the Bank or any other depository
institution subsidiary of Atlantic to violate any provision of sections 23A and
23B of the Federal Reserve Act or Regulation W of the Board of Governors.


 


Compensation


 


7.             (a)            Atlantic shall not, directly or indirectly, increase the salaries or
bonuses of, or make any other payments, including, but not limited to, the
payment of fees, reimbursement of expenses or payment of indebtedness, to or on
behalf of, any of Atlantic’s officers without the prior written approval of the
Reserve Bank and the Commissioner.


 


(b)           All
salaries, bonuses, and fees paid to Atlantic’s officers shall be paid solely by
Atlantic and preapproved by the board of directors on a regular basis.


 


(c)           Notwithstanding
the provisions of this paragraph, Atlantic does not need to obtain the prior
written approval of the Reserve Bank and the Commissioner for the reimbursement
of reasonable expenses that aggregate no more than $500 per month for each
officer, provided that


 


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such reasonable expenses are incurred in performing
routine duties, which have been adequately documented and reported on Atlantic’s books and records.


 


Compliance with Laws and Regulations


 


8.             (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, Atlantic 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)           Atlantic
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


 


9.             Within
30 days after the end of each calendar quarter following the date of this
Agreement, the board of directors shall submit to the Reserve Bank and the
Commissioner 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


 


10.           (a)            Atlantic shall submit a written capital plan that is acceptable to the Reserve
Bank and the Commissioner within the applicable time period set forth in
paragraph 4 of this Agreement.


 


(b)           Within
10 days of approval by the Reserve Bank and the Commissioner, Atlantic shall
adopt the approved capital plan. Upon adoption, Atlantic shall promptly
implement the approved plan, and thereafter fully comply with it.


 


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(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 and the
Commissioner.


 


Communications


 


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


 


(a)           Mr. Robert D. Hawkins


Assistant Vice President


Federal Reserve Bank of Atlanta 


1000 Peachtree Street, N.E.


Atlanta, Georgia 30309-4470


 


(b)           Mr. Robert M. Braswell


Commissioner


Georgia Department of Banking and Finance 


2990 Brandywine Road, Suite 200


Atlanta, GA 30341


 


(e)           Mr. Mark Stevens


CEO and President


Atlantic Southern Financial Group, Inc. 


1701 Bass Road


Macon, Georgia 31210


 


Miscellaneous


 


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


 


13.         The provisions of this Agreement shall be binding upon Atlantic and its institution-affiliated
parties, in their capacities as such, and their successors and assigns.


 


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


 


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15.         The provisions of this Agreement shall not bar, estop, or otherwise
prevent the Board of Governors, the Reserve Bank, the Commissioner or any other
federal or state agency from taking any other action affecting Atlantic, the
Bank, or any of their current or former institution-affiliated parties and
their successors and assigns.


 


16.         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) and by the Commissioner pursuant to the Official Code of
Georgia Annotated § 7-1-91.


 


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


 




	
  ATLANTIC SOUTHERN FINANCIAL GROUP, INC.

  	
   

  	
  FEDERAL RESERVE BANK OF ATLANTA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
         Robert D.
  Hawkins

  
	
   

  	
   

  	
   

  	
   

  	
         Assistant Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  BANKING COMMISSIONER OF THE STATE OF GEORGIA

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
         Robert M.
  Braswell 

  
	
   

  	
   

  	
   

  	
   

  	
         Commissioner

  






 


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