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April 16, 2009
Diane Casey-Landry Chief Operating Officer & Sr. Executive Vice President Tel: 202-663-5110 Fax: 202-663-7533 email@example.com
Hon. Timothy F. Geithner Secretary of the Treasury United States Department of the Treasury 1500 Pennsylvania Avenue, NW, Room 3330 Washington, DC 20220 Dear Secretary Geithner: I am writing on behalf of the American Bankers Association to request that Treasury address two serious inequities that have developed in the implementation of the Capital Purchase Program (CPP). Inequitable tier 2 capital treatment under CPP We would appreciate you addressing the inequitable capital treatment of the Treasury investments for certain banks participating in the CPP. For all companies other than stand-alone insured depository institutions organized as S corporations (S corporation banks) or mutual institutions (mutual banks), the investments are treated as Tier 1 capital; however, for S corporation banks and mutual banks the investments are treated as Tier 2 capital. We reiterate our concerns, first expressed when the term sheet for S corporations was released, about the inequitable treatment of certain classes of institutions. While Tier 2 capital improves an institution’s total risk-based capital, it does nothing to help other measures of an institution’s capital position that often are scrutinized more closely by investors, analysts, and bank customers. We appreciate that there are differences between the capital instruments provided by the various types of entities that are participating in the CPP. However, the investments are designed to be economically comparable. Each has a stated duration that likely will far exceed the actual life of Treasury’s investment in any given institution. Each has incentives for the recipient to repay Treasury by the end of the 5th year. Each pays dividends or interest in an amount that, after taxes, is designed to be comparable. And each has comparable restrictions that apply to the recipient as long as Treasury’s investment remains outstanding. Given these similarities, it is unfair to single out S corporation banks and mutual banks for a different treatment. Accordingly, we urge you to work with the bank regulators to achieve consistent treatment of Treasury’s CPP investments as Tier 1 capital for any company that participates in the program.
We note that mutual banks operating as stand-alone institutions have been particularly disadvantaged. First, the path to form a mutual holding company is much more complex and time consuming than that for formation of other bank holding companies. This is because the underlying mutual bank has to be converted to a stock bank held by a new mutual ownership interest, requiring time-consuming mutual stakeholder votes and other considerations. As a result, while other stand-alone banks have had feasible options to form holding companies to participate in CPP, mutual banks effectively do not. Second, and partly a reflection of the unique factors that affect the ability of mutual banks to raise capital, only mutuals have statutory provisions to raise capital through issuance of mutual capital certificates. The American Bankers Association and others have recommended that CPP investments be permitted through this instrument, but by all appearances there has been no serious consideration of this option by Treasury staff. We strongly recommend that mutual capital certificates be permitted as an investment option under CPP. We also strongly recommend that you extend the deadlines by which holding company applications must have been approved in order for a holding company to be eligible to participate in the CPP. Providing interested S corporation banks and mutual banks sufficient time to form holding companies and apply for an investment in the newly formed holding companies would lessen the inequities otherwise created by the differing capital treatments. Onerous prepayment penalty for short-term CPP investments We request that you permit companies to withdraw from the CPP without having to pay what amounts to a prepayment penalty. The American Recovery and Reinvestment Act of 2009 (ARRA) authorizes companies to withdraw from the CPP without waiting a specified length of time or raising capital from third parties. Section 7001 of the ARRA states, in relevant part: (g) NO IMPEDIMENT TO WITHDRAWAL BY TARP RECIPIENTS.—Subject to consultation with the appropriate Federal banking agency (as that term is defined in section 3 of the Federal Deposit Insurance Act), if any, the Secretary shall permit a TARP recipient to repay any assistance previously provided under the TARP to such financial institution, without regard to whether the financial institution has replaced such funds from any other source or to any waiting period, and when such assistance is repaid, the Secretary shall liquidate warrants associated with such assistance at the current market price. Participating institutions may be divided into two categories for purposes of this discussion. The first consists of publicly traded institutions, which issued preferred stock plus warrants entitling Treasury (or the current holder) to acquire common stock of the issuer in an amount equal to 15% of Treasury’s initial investment. These warrants are immediately exercisable although, as far as we know, none have yet been exercised.
The CPP has been implemented under the authority of Title 1 of the Emergency Economic Stabilization Act, captioned “Troubled Assets Relief Program” (commonly referred to as TARP). 2
The second group consists of non-publicly traded institutions, which issued preferred (or senior) securities plus warrants entitling Treasury to acquire “warrant preferred” shares or “warrant securities” of the issuer (collectively referred to herein as warrant shares). These warrants, which were exercised by Treasury at closing, entitled Treasury to receive warrant shares in an amount equal to 5% of its initial investment. Upon withdrawing from the CPP, a publicly traded institution has the option of redeeming the warrants at a price arrived at through an appraisal process; if it does not do so, Treasury will liquidate the warrants by selling them to a third party. A non-public institution must pay Treasury for the preferred/senior securities that the company issued and for the warrant shares. Thus, depending on the type of institution in question, the issuing company either (a) must pay Treasury a significant sum of money to redeem outstanding warrants or the warrant shares (as appropriate) or (b) have its common shareholders’ interests diluted. The purpose of these warrants was to provide what was deemed an appropriate return to government investment, and the warrants were calibrated premised on the assumption that investments would remain in place several years. Many banks participated in the CPP reluctantly and at the urging of their primary regulator. The public backlash and media portrayal of the recipients of federal funds has caused many participants to conclude that the burdens associated with the program far outweigh its benefits. These institutions believe it is in the best interests of their customers, shareholders, and communities to repay the funds. However, to do so the company must repay not only Treasury’s investment in the bank plus accrued and unpaid dividends but also an additional profit for Treasury equal to 5% of the investment (for non-publicly traded companies) or the fair market value of the warrants (for publicly traded companies). For a very short term investment, this amounts to an onerous exit fee, not a proper return on investment.2 Banks seeking to exit the CPP are not looking for a windfall. Rather, they simply want the flexibility to leave a program that, for them, has quickly become unacceptable and changed in its purpose. As long as the bank’s primary regulator agrees that the bank will remain able to meet the needs of its community in a safe and sound manner, there is no reason for Treasury to impose such a punitive obstacle to exiting the CPP. While the terms of the agreement were known to participants prior to closing, what was unknown to all was that a program designed to shore up public confidence in banks would have precisely the opposite effect in many cases. Thank you very much for your attention to these issues. We would be pleased to provide any further assistance you would find helpful. Sincerely,
We recognize that section 7001 of the ARRA directs Treasury to liquidate the warrants “at the current market price.” We will be consulting with Congress on the need to amend this language to permit the flexibility described above and request that Treasury support a proposed amendment as needed. 3
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