FINANCIAL SERVICES pr ie a PPh) _ FOMMISSION CHARLIE CRIST 283 Bee Al GOVERNOR Ae ay - Pe i OFFICE OF FINANCIAL REGULATION | 03 coum fy PYiStas ATTORNEY GENERAL ALEX HAGER i é 8 AT) ALEX SINK fig ACTING COMMISSIONER EARIN (CHIEF FINANCIAL OFFICER CHARLES BRONSON COMMISSIONER OF December 4, 2008 AGRICULTURE VIA U.S. MAIL The Honorable Carolyn S. Holifield Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 Re: Office of Financial Regulation v. First Commercial Bank of Tampa Bay OFR Administrative File No. 0475-FI-11/07; DOAH Case No. 08-2212 Dear Judge Holifield: With regard to the above referenced matter, enclosed please find a copy of the Final Order entered by the OFR for your files. If you should have any questions, please do not hesitate to call me at (850) 410-9896. Yours Truly, cc: Tom Barnhart, Esq. (w/o enclosure) Edward Dougherty, Esq. (w/o enclosure) eee 101 EAST GAINES STREET, TALLAHASSEE, FLORIDA * (850) 410-9896 * FAX (850) 410-9645 EMAIL; JEFFREY. LEHEUP@FLOFR.COM MAILING ADDRESS: 200 EAST GAINES STREET, FLETCHER BUILDING, SUITE 526, TALLAHASSEE, FLORIDA 32399-0379 Affirmative Action / Equal Opportunity Employer STATE OF FLORIDA OFFICE OF FINANCIAL REGULATION OFFICE OF FINANCIAL REGULATION, Petitioner, vs. Admin Proceeding No,: 0475-FI-11/07 <3 FIRST COMMERCIAL BANK OF TAMPA BAY, Respondent. . / FINAL ORDER On April 3, 2008, the State of Florida, Office of Financial Regulation (“Office”) issued and served against First Commercial Bank of Tampa Bay (“Respondent”) an Administrative Complaint with Notice of Rights (“Administrative Complaint”), Respondent timely requested an administrative hearing, which was referred to the Division of Administrative Hearings (“DOAH"”) and assigned Case No, 08-2212. Prior to any administrative hearing on the disputed facts in this matter, on November 21, 2008, the parties entered into a Stipulation and Consent Agreement (“Agreement”) with respect to the matters in controversy. A copy of the Agreement is attached as Exhibit A. Per the . Agreement, on November 24, 2008, an Agreed Motion to Relinquish Jurisdiction was filed with DOAH. On November 25, 2008, the assigned Administrative Law Judge entered an Order Closing File and Relinquishing Jurisdiction (“DOAH’s Order”) for the Office to issue this Final Order in accordance with the Agreement, A copy of DOAH’s Order is attached as Exhibit B. Upon consideration, it is therefore ORDERED: 1. The attached Stipulation and Consent Agreement is APPROVED, ADOPTED, and INCORPORATED by reference in'this Final Order. 2. The Respondent is ORDERED to observe and abide by the terms of the Stipulation and Consent Agreement, which may be enforced by the Office pursuant to Section 120.69, Florida Statutes (2008). DONE AND ORDERED this Ria day or Keepncbon> , 2008, in Tallahassee, Leon County, Florida. NOTICE OF RIGHTS TO JUDICIAL REVIEW A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING THE ’ ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK FOR THE OFFICE OF FINANCIAL REGULATION, SUITE 526, THE FLETCHER BUILDIN G, 200 E. GAINES STREET, TALLAHASSEE, FLORIDA 32399-0379, AND A COPY, ACCOMPANIED BY “THER TILING FEES AS REQUIRED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, 301 S. MARTIN LUTHER KING, JR., BOULEVARD, TALLAHASSEE, FLORIDA 32399-1850, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above FINAL ORDER has been furnished by certified U.S. Mail to Counsel for the Respondent, Edward Ww. Dougherty, Esq., 2457 Care Drive, Tallahassee, FL 32308, and Tom Barnhart, Esquire, Senior Assistant Attorney General, Office of the Attorney General, The Capitol, PL- Ol, Tallahassee, FL 32399-8050, this zx day of December, 2008. Assistant General Counsel Office of Financial Regulation. ; P.O. Box 8050 Tallahassee, FL 32314-8050 Tel.: (850) 410-9896 Fax: (850) 410-9645 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF FINANCIAL REGULATION, Petitioner, vs " DOAH Case No.: 08-2212 . Admin Proceeding: OFR No. 0475-FI-11/07 . FIRST COMMERCIAL BANK OF TAMPA BAY, Respondent, - . / STIPULATION AND CONSENT AGREEMENT THIS AGREEMENT is made and entered into by and between the State of Florida, OFFICE OF FINANCIAL REGULATION, hereinafter referred to as "OFR," and FIRST COMMERCIAL BANK OF TAMPA BAY, hereinafter referred to as “FCBTB,” The OFR and FCBTB (collectively "Parties"), in- consideration of th mutual covenants contained herein, hereby enter into this Stipulation and Consent Agreement ("Agreement") and agree as follows: _ 1. Pursuant to Sections 655 .001 and 655.012, Florida Statutes, the OFR is the state agency authorized and charged with the administration and enforcement of the Financial Tnstitutions Codes, including Chapters 655 and 658, Florida Statutes, as pertaining to banks, and the rules and regulations ‘promulgated thereunder as contained in Chapter 69U, Florida Administrative Code. 2. FCBTB is a Florida state-chartered bank operating under Charter Number 993 and therefore a state fi nancial institution, as that term is defi ned in Section 655.005(1)(p), Florida Statutes, with its principal place of business located at 4600.W. Kennedy Boulevard, Tampa, Florida, 33609. 3, On or about August 13, 2007, the OFR commenced an examination of the condition of FCBTB pursuant to Section 655,045, Florida Statutes. Generally, the financial information for FCBTB used in the examination was that reported by FCBTB as of the end of the quarter as of June 30, 2007. EXHIBIT 4, On or about August 30, 2007, the OFR completed the on-site portion of the examination of FCBTB' 's ‘condition and conducted an exit meeting with the management of FCBTB to discuss the ~ preliminary resulta of the examination. ‘The OFR forwarded a copy of a fi inal Report of Examination ("Report") to FCBTB with Si cover correspondence dated October 19, 2007. The OFR's- cover correspondence advised FCBTB that the — results of the examination gave cause for supervisory concem, and ‘also informed FCBTB thatthe OFR- believed that a revised program of corrective action was watranted. Finally, the correspondence advised FCBTB that a revised program of corrective action was being drafted and would be forwarded to FCBTB ‘ata later date. 2, 6, , On or about December'21, 2007, the OFR forwarded a proposed Stipulation and Consent to Entry of Order to Cease and Desist, along with a proposed Order, to FCBTB for consideration and execution as the appropriate revised program of corrective action to address the OFR’s supervisory concerns, 7. would riot consent to the entry. of the proposed Order to Cease and Desist, By correspondence dated February 28, 2008, FCBTB notified the OFR that FCBTB 8. On or about April 3, 2008, the OFR issued an Administrative Complaint and Notice of Rights ("Complaint") notifying FCBTB that the OFR intended to issue an Order to Cease and Desist as authorized by Section 655.033, Florida Statutes. The Complaint was.subsequently served on FCBTB as OFR Administrative Proceeding No, 0475-FI- 1/07, . 9, Onor about April 24, 2008, FCBTB petitioned OFR requesting a formal administrative hearing pursuant to Section 120.5 7, Florida Statutes, and the above-captioned administrative proceeding was referred to the State of Florida, Division of Administrative Hearings and assigned Case No. 08-2212. 10. FCBYB has represented to the OFR that it has or will take corrective actions, as set forth and more fully described in this Agreement, to address concerns and criticisms set forth in the OFR‘ 2007 Report of Examination and in the Complaint, and the OFR has relied upon those representations as consideration for entering into this Agreement. en The OFR and FCBTB desire to expressly agree concerning the resolution of all issues raised in the Complaint. FCBTB stipulates and agrees to the terms herein in consideration of the OFR': forbearance from continuing the administrative action against FCBTB. , . MANAGEMENT 12. The Board of Directors of FCBTB, hereinafter "Board", will immediately increase its. participation i in the affairs of FCBTB, ‘assuming full responsibility for the approval of sound policies and objectives, and for the supervision of all of FCBTB's activities, consistent with the role and expertise commonly expected for directors of banks of comparable ‘size. This participation will include in-person meetings to be held no less frequently than monthly. Pursuant to Section 607.0820(4), Florida Statutes, Directors may participate in meetings through the use of any means of communication by which all directors participating may simultaneously hear each other during the meeting, unless FCBTB’s articles of incorporation or bylaws provide otherwise. Detailed written minutes of all Board meetings will be , maintained and recorded on a timely basis fully documenting the Board's review, discussion and "approval of all agenda items and any other matters discussed at the meeting and will include the names of dissenting directors. 13. Within 30 days from the effective date of this agreoment, FCBTB' 's Board shall designate a committee to oversee FCBTB's compliance with the requirements set forth in this agreement. Such Directors’ committee shall exclude members who are involved in the day-today operations of the FCBTB and shall receive monthly reports from management regarding FCBTB's compliance with this agreement, The Directors’ committee shall present a report regarding FCBTB's compliance with this agreement to the : entire Board at each of its regularly scheduled meetings. Such report will be recorded in appropriate minutes of the Board's meeting and will be retained in FCBTB's records. 14, Prior to the effective date of this agreement, FCBTB has submitted a Management Plan to the OFR, which provides for the following: Identification of the structure of the executive managemitent team, along with the names (a) of the individuals currently holding executive management positions within the FCBTB; Identification of FCBTB's short- and long-term management succession plan, and: (b) (c) ‘4 ‘ob descriptions for all executive officer positions including, but not limited to, the Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, Senior Loan Officer, and Chief Credit Officer. The job descriptions also indicate the date the description was approved by the Board of Directors, the name of the current officer, and the date the officer assumed his position. FCTB will submit a Revised Management Plan within 30 days of the replacement or addition of any executive officer or the modification of the job description of any exeoutive officer or of the managestent succession plan. - ; 15, Within 90 days from the effective date of this Agreement, the Board will conduct evaluations to assess the qualifications and performance of all senior managers, including ali department “heads and executive offi icers, of FCBTB to determine if each person has the experience commensurate with his or her duties and responsibilitles at FCBTB. FCBTB's management will be assessed on its ability to:- @) Comply with the requirements of this Agreement; (b) Operate FCBTB ina safe and sound manner, and; (c) Comply with applicable laws and regulations, The results of the evaluations will be submitted to the OFR for review and comment within 90 days of the effective date of this Agreement. ; 16. The OFR acknowledges that in response to supervisory concerns FCBTB has hired an experienced Chief Operating Officer and President, who is acceptable to the OFR, to replace the former president and manage the operations of the FCBTB. FCBTB agrees that, ifthe OFR determines and advises FCBTB that additional or replacement personnel ate needed to properly staff FCBTB with qualified, experienced officers sufficient to provide the leadership required to comply with the business plan and strategies adopted in compliance with the terms of this Agreement and the supervisory concerns previously identified by OFR, then FCBTB will recruit and hire such personnel. i ; 17, Atall times, the management of FCBTB will include a fully qualified; - experienced Chief Credit Officer, who shall remain independent of Joan production, The Chief Credit Officer will be employed full time to manage, implement, coordinate and monitor the implementation of Board approved loan policies, troubled loans, day-to-day loan review and the quality assessment program, and he will not be assigned responsibility for any supplemental duties, The OFR acknowledges that FCBTB hited a Chief Credit Officer in January 2008, and "notified the OFR of his proposed appointment as an executive officer and the Chief Credit — Officer of FCBTB in February 2008, pursuant to Section 655.0385, Florida Statutes. The OFR notified FCBTB that it would not issue a notice of disapproval with regard to the proposed : appointment in April 2008, EARNIN GS, BUDGETS AND STRATEGIC PLANS 18. = Within 60 days of the effective date of this agreement, FCBTB's Board shall prepare a- written plan, for improving FCBTB's earnings as measured by both Return on Average Assets CROAA) and Return on Equity ("ROB"). The plan shall, at a tninimam, describe all actions necessary for improving and maintaining FCBTB's profitability; include realistic projections, and; address how the budget and strategic plan may be affected by the plan, FCBTB shall submit the pian to the OFR for review and comment, FCBTB agrees that any and all commentary provided by the OFR will be reviewed and discussed by FCBTB's entire Board at its next scheduled meeting with the discussion being duly recorded in appropriate minutes of the Board's meeting and retained in FCBTB's records. 19, Within 60 days of the effective date of this agreement, FCBTB's Board shall finalize a comprehensive budget and earnings forecast for 2009. FCBTB shal submit the 2009 budget and earnings forecast to the OFR for review and comment no later than January 31, 2009. In the future, FCBTB shall submit annual comprehensive budget and ‘earnings forecasts to the OFR for review and comment no later than January 31 of each subsequent calendar year. In preparing the budgets, a complete review of income . and expense accounts should be conducted for the purpose of identifying areas where earnings might be improved, with particular emphasis given to improving net interest margin, maintaining an adequate allowance for loan loss reserves, and increasing non-interost income. The budget shall contain narrative 5 comments which addross FCBTB's expectations for asset growth rates and limitations, time frames for reaching financial projections, and the underlying assumptions used in determining FCBTB's financial projections, After submitting its budget and carnings forecasts to the OFR for review and comment, _FCBTB shall submit quarterly progress reports to the OFR documenting FCBTB's actual performance " compared with the budgets. FCBTB shall submit its quarterly progress reports concurrently with any other reporting requifements set forth in this Agreement. . : 20. Within 90 days ftom the effective date of this Agreement FCBTB shall finalize its Strategic Plan for three years to include 2009, 2010, and 2011, which provide specific goals and parameters . regarding: (a) consideration of FCBTB's capital and liquidity positions; (b) an operating plan to , accomplish specific short-term goals; (c) specific long-term goals for growth, profitability, ‘capital maintenance, and. service to the community; and (4) future information technology needs, product and service enhancements, and the budget implications thereof. The Strategic Plan shall be submitted to the OFR for review-and approval within 30 days of being finalized. ; LENDING AND CREDIT ADMINISTRATION 2h. Within 60 days from the effective date of this Agreement, FCBTB shall submit to the OFR a plan and proposal detailing how it wilt effect the reduction and/or collection of any outstanding asset with an aggregate value of $200,000 or more that was adversely classified in the OFR's 2007 Report . of Examination, Thereafter, the FCBTB shall submit quarterly progress reports to the OFR describing actions taken to improve and/or collect all adversely classified assets, including assets internally classified after August 15, 2007. The progress reports shall be provided concurrently with the other reporting * requirements set forth in this Agreement. ™ 22, FCBTB's Loan Policies have been revised to address the concerns and criticisms set forth in the OFR's Report and the Complaint including revisions containing: , (a) Specific criteria for the use of interest reserves; and _ (b) A requirement for annual reviews for all types of larger commercial credits. 23, Within 60 days of the offective date of this Agreement, FCBTB shall develop and implement a plan to improve credit administration and the underwriting process. These improvements shall include: (a) Review of appraisals on complex commercial real estate loans by personnel with appraisal training to ensure that adequate collateral coverage exists; (b) Documentation that each borrower's liquid assets were verified by FCBTB personnel and evidence of each borrower s cash equity position; (©) Correction of any errors in foan offi cers' {oan presentations by credit analysts prior to approval by any Loan Committee; ‘ (d) Ensuring that current operating statements or current tax returns and audited or signed financial information for business entities and personal statements are obtained; (e) Documentation of the borrowing entity's partnership structures/compositions, where applicable; (f) Ensuring that cash flow analyses are based on the borrower's entire debt service, including payments on junior mortgages; (g) Ensuring consistency and completeness in loan presentations, including disclosure of the existence of all junior liens, disclosure and justification for interest reserves and speculative aspects of construction/development loans, documentation of borrower's financial capacity for repayment of the debt, and accurate loan-to-value ratios, and: (h) Ensuring that loan presentations for loan renewals address any deterioration ina borrower's overall financial condition. _ 24. Within 60 days from the effective date of this Agreement, the Board shalt develop a written , plan acceptable to the OFR which will enable the Board and FCBTB's management to monitor and manage concentrations of risk in its credit and lending activities in relation to FCBTB's capital, assets, and deposits, At a minimum, the plan shall include appropriate limits for concentrations of credit by industry, product line, type of collateral, and borrower, The plan shall establish Jimits and identify the risks associated with the concentration of commercial real estate loans noted in the OFR's 2007 Report of 7 , ‘Examination and shalt address the required reduction in real estate loan-to-value exceptions to comply with Appendix A to Part 365 of the FDIC Rules and Regulations - Interagency Guidelines for Real Estate Lending Policies, Further the Board shall identify procedures for monitoring compliance with the plan : and management shall bo required to provide monthly reports to the Board regarding the level and composition of concentrations, Any discussions by the Board, or its designatéd committees, which are related to concentrations of risk shall be recorded in the minutes of the Board's regular monthly. meetings and retained in FCBTB's records. 7 25, Within 90 days from the effective date of this Agreement, FCBTB’s Directors will receive training in the review and underwriting of commercial real estate loans, so that the Board will have increased ability to make informed decisions about FCBTB's lines of business. 26. FCBTB's Chief’ Crédit Officer will present a full report concerning the status of all material issues relating to the condition of FCBTB's loan portfolio, credit administration and loan underwriting practices to FCBTB's Board and Joan committee on no less than a monthly basis. The Chief Credit Officer's reports to the Board will not be subject to modification or approval by FCBTB's management before they are presented to the Board. The Chief Credit Officer will at all times have __ unrestricted access to the Board concerning lending and credit policies or issues, and the Board will at all times have unrestricted access to the Chief Credit Officer, The Chief Credit Officer's compensatiori will be determined by FCBTB's Board, and the Chief Credit Officer's performance evaluations will be performed by the Board. , , ; ; CAPITAL 27, Within 60 days of the effective date of this Agreement, the Board shall review the Allowance for Loan and Lease Losses ("ALLL") for adequacy. Thereafter, the Board shall provide for a. . review of the ALLL at least once each calendar quarter. The review shall be conducted in a timely fashion so that the review findings may be reported in the quarterly Reports of Condition and Income ("Call Reports"), The review shall focus on delinquent and nonaccrual loans, an estimate of potential loss exposure of significant credits, concentrations of credit and present and prospective economic conditions. a A deficiency in the ALLL shall be remedied bya charge to current operating earnings in the calendar quarter in which it is discovered and prior to submitting the Call Reports.. 28, ; FCBTB agrees that it will at all times until the termination of this Agreeinent, maintain Tier 1 capital, Tier 1 risk based capital and total risk based capital ratios that are equal to the ratios of a well capitalized i institution as that term is defined in 12 C. F.R, 325.103(b)(1). The level of Tier 1 capital, Tier 1 risk based capital, and total risk based capital to be maintained shall be in addition to a fully funded Allowance for Loan and Lease Losses (“ALLL”) the " adequacy of which shall be satisfactory to OFR, as determined during subsequent examinations , and/or visitations. An increase in Tier I capital to meet the requirements of this paragraph may “not be accomplished through a deduction from FCBTB’s ALLL without the prior written : authorization of OFR. In the event that any of the Capital Ratios fall below the levels required for a “well capitalized” i institution, FCBTB agrees fo use all ‘means necessary to restore such _. Capital Ratios to the level required for a “well capitalized” institution within 90 days after FCBTB has determined, or the Office has advised FCBTB, that the levels have fallen below those sequired. FCBTB's failure to restore the Capital Ratios within 90 days shall be deemed a breach ofthis agreement, . OTHER MATTERS _ 29, FCBTB agrees that it shall immediately take the necessary steps, consistent with the other provisions of this Agreement and sound banking practices, to address the supervisory concerns and correct any alleged violation of laws, rules, and regulations cited on page 16 of the Report. Additionally, the FCBTB agrees that it shall adopt procedures and controls to enable it to comply with applicable banking laws and regulations in the future, - 30. FCBTB has provided ‘documentation to the OFR that indicates that it has implemented procedures necessary to comply with the Guidelines Establishing Standards for Safeguarding Customer Information, 12 C.F.R. Part 364, Appendix B, of the FDIC regulations, These procedures include control "procedures designed to mitigate risks identified in the risk assessment program. : ; 9 31, FCBTB has provided documentation to the OFR that indicates that it has revised its Business Continuity Plan to include guidance on when managers stiould declare an emergency or invoke use of the back-up site, and documenting that such revised plan has been reviewed and approved by the Board. ) 7 : , 32, While this Agreement remains in effect, F CBTB agrees that it shall notify the OFR in writing when it proposes to add any individual to the Board or employ any individual as an executive officer, as that term is defined in Section 655 00S(I)(, Florida Statutes, including, but not limited to, the . president, chief executive officer, Bank Secrecy Act officer, chief lending officer, and chief operations officer, Such notification must be received at least 60 days before such addition or employment is intended to be effective, All notifications to the OFR shall, at a minimum, comply with the requirements set forth in Rule 69U-100.03852, Florida Administrative Code. The OFR may specify, at its sole. discretion, such additional information or notice requirements for FCBTB to submit as thay be deemed necessary for the OFR to properly evaluate the proposed individual(s). FCBTB shall not add or employ any proposed individual(s) if the OFR issues a written notice of disapproval. The OFR.agrees that it will make its best efforts to respond within 10 business days of receipt of a properly completed form OFR U- 10 to any request for an interim appointment of at executive officer or Director candidate submitted to the OFR pursuant to Rule 69U-100.03852, Florida Administrative Code, _ 33 All plans, policies, and procedures required by this Agreement shal! be reviewed by the Board at feast annually for their effectiveness and revised and/or amended if appropriate. . Feb ie PEcem HEE Zz 34. Within 60 days of the calendar quarter ending- September 36, 2008, and then within30 of days from the end of each subsequent calendar quarter, FCBTB shall furnish written progress reports to OFR detailing the form and manner of all actions taken to comply with this Agreement and the results, thereof. The requirements for progress reports shail continue unless modified or terminated in writing by OFR. All progress reports and other written responses to this Agreement shall be reviewed by the Board . and be made a part of the minutes of the appropriate Board meeting. 35, To the extent that it has not already done so, FCBTB agrees to provide documentation to the OFR fegarding any representation it has made in this Agreement to 1Q. confirm that it has established and/or will maintain a plan, policy, procedure or program. OFR © will evaluate the materials submitted by FCBTB for comment purposes. FCBTB agrees to present any comments madé by OFR to FCBTB’s entire Board of Directors at the next scheduled meeting following the receipt of said comments for review and action as the Board deems | prudent or appropriate. : 36, Each party shall, upon the request of the other, execute, acknowledge and deliver any and all documents or instruments as may be necessary to enable the other party to effectuate the intent, “purposes and provisions of this Agreement. 37. : Each party acknowledges that they have been advised to seek independent legal counsel] ; and that they had an opportunity to consult with an attorney as to their rights and obligations prior to signing this Agreement and each party is acting freely and voluntarily, intending to be bound by it. Each “understands and agrees that this Agreement constitutes the entire contract of the patties, It supersedes any prior understanding or agreements between them upon the subjects covered in this Agreement, There are no representations other than those set forth herein. 38. Each party shall be solely and independently responsible for the attorneys’ fees and costs it has incurred in Administrative Proceeding No. 0475-FI-1 07, Division of Administrative Hearings Case No. 08-2212 and will not seek any contribution from the other party towards said fees and costs. 39. = The failure of either party-at any time to require performance by the other of any of the terms, provisions or conditions hereof shall in no way affect that party's rights thereafter to enforce same, ‘nor shall the waiver by either party of any breach at any time of any'of the terms, provisions or conditions hereof affect that party's rights thereafter to enforce same, nor shall the waiver by either party of any breach at any time of any of the terms, provisions, or conditions hereof, be taken or held to be a waiver of any succeeding breach of any such term, provision, or condition hereof or as a waiver of the term, _ provision, or condition itself. - . 40. No modification, waiver or relinquishment shall be deemed to have been made by either of the parties unless same is done in writing by the party so affected. 11 41. This Agreement shall be submitted into evidence in any administrative proceeding or legal action in which any of the issues raised in the Administrative Complaint issued by OFR on April 3, 2008, are in controversy as the full and final agreement of the patos concerning the resolution of said __ issues and shali be applicable to any and all other questions, rights, obligations, benefi ts or privileges of the partion OFR agrees that it shall advise the Federal Deposit Insurance Agreement ("FDIC") of the parties execution of this Agreement to resolve the allegations set forth in the Complaint. Thereafter, FCBTB shall be solely responsible for any necessary coordination with the FDIC regarding how compliance with this agreement may be substituted for compliance with the Comective Action Program currently i in effect between the FDIC, the OFR and FCBTB, FCBTB also acknowledges and agrees that this Agreement does not supersede any commitment it has made to the OFR in the Corrective Action Program that is not specifically addressed herein. 42, a. The Parties agree that the effective date of this Agreement shall be the dato that it is fully executed. Upon full execution, this Agreement shall constitute a voluntary notice of withdrawal of FCBTB's petition for formal hearing in DOAH Case No. 08-2212, Furthermore, FCBTB agrees to and authorizes the OFR to file an Agreed Motion to Relinquish Jurisdiction to the OFR in DOAH Case No. 08-2212, pursuant to Rule 28-1 06.204, Florida Administrative Code. b, Within thirty (30) days after the Administrative Law Judge's entry of an Order Rell inquishing Jurisdiction, the OFR agrees to issue its Final Order adopting this _ Agreement and concluding the administrative proceeding, c. The parties agree that the Final Order incorporating this Agreement will temain effective and enforceable as a “written agreement" pursuant to Section 655.041, Florida Statutes, or as an "order" pursuant to Section 120.52, Florida Statutes, and shall constitute final vagericy action by the OFR, for which the OFR may seek enforcement pursuant to Chaptors 120,. 655, and 658, Florida Statutes. 43. FCBTB, with respect to the Final Order adopting this Agreement and the final order relating to DOAH Case No. 08-2212 (“Final Orders”), knowingly and voluntarily waives: a. Any right to an administrative hearing or issuance of a recommended order provided by Chapters 120, 655, or 658, Florida Statutes, or Chapters 28 or 69.of the Florida Administrative Code; b, _ Any requirement that the Final Orders contain stated Findings of Fact and Conclusions of Law or a Notice of Rights; G Any right to contest the validity of any term, condition, obligation, or duty created hereby in any judicial or administrative forum; and od. Any and all objections to or challenges in any judicial proceeding or forum, including, but not limited to, appeal pursuant to section 120.68, Florida Statutes, any aspect, provision, or requirement concerning the content, issuance, procedure, of timeliness of the Final Orders 8. FCBTB does not, however, waive its right to assert any defense it may have to any alleged breach of this Agreement i in any subsequent Court or Administrative action. 44. The parties agree to discuss and evaluate ECBTB's compliance with the terms and termination of this Agreement on at least an annual basis, with such evaluation beginning upon the completion of OFR's next scheduled examination of FCBTB and transmittal of the Report of Examination . to FCBTB. 45. . This Agreement is being entered into without prejudice to the rights of the OFR to take any future action concerning FCBTB including its directors, officers, employees, as the OFR deems necessary and appropriate to insure compliance with the terms of the Final Order and this Agreement, any other Order entered concerning FCBTS, or to prevent any violation of laws, regulations, or rules relating to financial institutions, 46, The invalidity of any clause contained herein shall not affect the enforceability of the remainder of this Agreement, ; : 47, This Agreement shall be interpreted. and governed by the laws of the State of Florida and, if applicable,-the United States of America. WHEREFORE, and it is resolved that, in consideration of the oregon, the off ice of Financial Regulation and First Commercial Bank of Tampa Bay hereby execute this Agreement and consent to its terms, this al® day of __/ ip pize v4 b- Wer , 2008. F IRST COMMERCIAL BANK OF TAMPA BAY STATE OF FLORIDA, OFFICE OF TAMPA, FLORIDA FINANCIAL REGULATION BY. Aa RS. Ct BY: Linda B. Charity, Director . ’ Division of Financial Institytions tof as a Director 1. RY \| A . Cleme nts , as Corporate Secretary of First Commercial Bank of Tampa Bay, Tampa, Florida, hereby certify that the foregoing Stipulation and Consent aula ie | duly enacted by the Board of Directors of First Commercial Bank of Tampa Bay, Hao day of Wovem bo , 2008. rporate Secretary ay, CS 14 Aadaoecuue 10.97 O19¢024 208 PAGE 61/@1 4 . . FAIRS! CUMM BANK , WHEREFORR, and it {x resolved that, ia conaideration of the foregoing, the Office of Financial Regulation and First Commercial Bank of Tampa Bey hereby exeoute thle Agreement and consent to ity terms, Chis al oe day of Lover beg, 2008 . STATE OF FLORIDA, OFFICE OF FIRST COMMERCIAL BANK OF TAMPA BAY BINANCIAL REGULATION ' TAMPA, FLORIDA ; By, Deedee Se CNet Linda B: Charity, Director Division of Fianoial Insti EAE. Za Ki es a Director I, as Corporate Secretary of First Cotomertial Bank of Tampa Bay, Tampa, Florida, hereby certify that the foregoing Stipulation and Consent Agreement was duly enacted by the Board of Directors of First Commercial Bank of Tampa Bay, this deyof_ ___, 2008, BY: | Corporate Secretary 14 ' STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF FINANCIAL REGULATION, Petitioner, vs. FIRST COMMERCIAL BANK OF TAMPA IN BAY, A STATE CHARTERED BANK TAMPA, FLORIDA, : Respondent. ) ) ) ) } Case No. 08-2212 ) ) ) ) ) ) ) ORDER RELINQUISHING JURISDICTION AND CLOSING FILE This cause having come before the undersigned on the Agreed Motion to Relinquish Jurisdiction filed on November 24, 2008, and the undersigned being fully advised, it is, therefore, ORDERED that the file of the Division of Administrative Hearings in the above-captioned matter is hereby closed and jurisdiction is hereby relinquished to the Office of Financial Regulation, DONE AND ORDERED this 25th day of November, 2008, in Tallahassee, Leon County, Florida. Can d. Holfold CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 ‘Fax Filing (850) 921-6847 www.doah,state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2008. COPIES FURNISHED: Edward W. Dougherty, Jr., Esquire” Igler & Dougherty, P.A. 2457 Care Drive Tallahassee, Florida 32308 Jeffrey Alan LeHeup, Esquire Office of Financial Regulation 4300 '200 Bast Gaines Street, Suite 526 Tallahassee, Florida 32399 Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01- Tallahassee, Florida 32399-1050

Docket for Case No: 08-002212