UNITED STATES OF AMERICA Before The OFFICE OF THRIFT SUPERVISION

EX-10.2 3 dex102.htm STIPULATION AND CONSENT Stipulation and Consent

Exhibit 10.2

UNITED STATES OF AMERICA

Before The

OFFICE OF THRIFT SUPERVISION

 

In The Matter of:

   )   
  )   

BankUnited, FSB

   )    OTS Order No.: SE-09-023

Coral Gables, Florida

   )   
  )   

OTS Docket No. 08045

   )    Dated: April 14, 2009
    )   

STIPULATION AND CONSENT TO

PROMPT CORRECTIVE ACTION DIRECTIVE

 

1. The Office of Thrift Supervision (OTS) has informed BankUnited, FSB, Coral Gables, Florida, OTS No. 08054 (Institution), based upon information reported to the OTS, that grounds exist to issue a Prompt Corrective Action Directive (PCA Directive) pursuant to Section 38 of the Federal Deposit Insurance Act (FDIA), 12 U.S.C. § 1831o, and Section 565.7 of the OTS Regulations, 12 C.F.R. § 565.7, against the Institution. The Institution, in the interest of cooperation and to avoid the time and expense of pursuing further OTS administrative procedures for the issuance of a PCA Directive, stipulates and consents to the terms set forth in this Stipulation and Consent.

 

2. The Institution stipulates it is a federal savings association subject to the supervision and regulation by the OTS. The Institution is a “savings association” as that term is used in the Home Owners’ Loan Act (HOLA), 12 U.S.C. §§ 1461 et seq., and an “insured depository institution” as defined in 12 U.S.C. §§ 1813(b) and 1813(c)(2). The Institution stipulates, as such, that it is subject to the OTS’s authority to issue a directive to take prompt corrective action pursuant to Section 38 of FDIA, 12 U.S.C. § 1831o, and Section 565.7 of the OTS Regulations, 12 C.F.R. § 565.7.

 

3. The Institution consents, by execution of this Stipulation and Consent, to the OTS’s issuance of the accompanying PCA Directive. The Institution further agrees to comply with the terms of the PCA Directive.

 

4. The Institution consents, by execution of this Stipulation and Consent, to the OTS’s appointment of a conservator or receiver or other legal custodian for the Institution at any time that the Institution is “significantly undercapitalized” and until such time as the Institution becomes “adequately capitalized” as determined pursuant to Section 38 of FDIA, 12 U.S.C. § 1831o, and Section 565.4 of the OTS Regulations, 12 C.F.R. § 565.4. The Institution hereby waives its rights to seek judicial review of such appointment.

Prompt Corrective Action Stipulation (04/14/2009)

BankUnited, FSB, Coral Gables, FL OTS No. 08045

Page 2

 

5. The Institution, by execution of this Stipulation and Consent, authorizes the OTS to provide otherwise confidential information about the Institution to third parties to facilitate the possible acquisition of the Institution by a qualified buyer, sale of the Institution’s assets or the purchase of the Institution’s branches, or the possible merger of the Institution with a qualified merger partner.

 

6. The Institution, by execution of this Stipulation and Consent, authorizes the Federal Deposit Insurance Corporation (FDIC) to provide otherwise confidential information to third parties to facilitate the liquidation or other resolution of the Institution in anticipation of the possible appointment of the FDIC as conservator, receiver, or other legal custodian. The Institution hereby agrees that upon notification that it is “critically undercapitalized” pursuant to Section 565.3 of the OTS Regulations, 12 C.F.R. § 565.3, the Institution will cooperate fully with the FDIC to avoid a loss or otherwise minimize exposure to the insurance fund. Such cooperation includes, but is not limited to, responding to requests for information, providing full access to personnel, agents and service providers, and accommodating on-site visits. Nothing herein shall be interpreted to preclude such cooperation with the FDIC at any time prior to such time as the Institution may be notified that it is “critically undercapitalized.”

 

7. The attached PCA Directive is effective upon issuance. The Institution acknowledges that the PCA Directive is enforceable pursuant to Section 5(d) of HOLA, 12 U.S.C. § 1464(d), and Section 8 of FDIA, 12 U.S.C. § 1818.

 

8. The Institution hereby waives the following:

(a) its rights to pursue the OTS’s administrative process for issuance of the accompanying PCA Directive pursuant to 12 C.F.R. § 565.7;

(b) any and all rights it might otherwise have pursuant to federal law or regulations (including, but not limited to, 12 U.S.C. § 1831o and 12 C.F.R. § 565.7) in connection with issuance of the PCA Directive;

(c) its right to seek judicial review of the PCA Directive, including, but not limited to, any such right provided by Section 8(h) of FDIA, 12 U.S.C. § 1818(h); and

(d) its right to challenge or contest in any manner the basis, issuance, validity or enforceability of the PCA Directive or any provision thereof.

 

9. The Cease and Desist Order dated September 19, 2008, remains in effect.

 

10. (a) The laws of the United States of America shall govern the construction and validity of this Stipulation and Consent and the PCA Directive.

Prompt Corrective Action Stipulation (04/14/2009)

BankUnited, FSB, Coral Gables, FL OTS No. 08045

Page 3

(b) All references to the OTS in this Stipulation and Consent and the PCA Directive also shall mean any of the OTS’s predecessors, successors, and assigns.

(c) To the extent this Stipulation and Consent and PCA Directive may be deemed an agreement, the written terms herein and in the accompanying PCA Directive represent the final and sole binding written terms of such agreement with respect to the subject matters addressed therein.

 

11. Each Director signing this Stipulation attests that s/he voted in favor of the resolution authorizing the execution of this Stipulation.

BankUnited, FSB

Coral Gables, Florida

OTS No. 08045

 

By:   /s/  Lawrence H. Blum     By:   /s/   Tod Aronovitz
  Lawrence H. Blum, Chairman       Tod Aronovitz, Director

 

By:   /s/  Allen M. Bernkrant     By:   Hardy C. Katz
  Allen M. Bernkrant, Director       Hardy C. Katz, Director

 

By:   /s/  Marc D. Jacobson     By:   Neil H. Messinger
  Marc D. Jacobson, Director       Neil H. Messinger, Director

 

By:   /s/  Ramiro A. Ortiz     By:   /s/   Bradley S. Weiss
  Ramiro A. Ortiz, Director       Bradley S. Weiss, Director

Accepted By:

Office of Thrift Supervision

 

By:   /s/  Arthur W. Goodhand
 

Arthur W. Goodhand

Acting Southeast Regional Director

Date: See Effective Date on Page 1