FIRST AMENDMENT TO MANAGEMENT AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO
THIS FIRST AMENDMENT TO MANAGEMENT
AGREEMENT (the "First Amendment") is entered into as of January 29, 2008,
among Belvedere SoCal, a corporation organized under the laws of California
("SoCal") located in San
Francisco, California, Professional Business Bank, a California banking
corporation ("Bank"),
located in Pasadena, California, Belvedere Capital Fund II L.P., a
Delaware limited partnership ("Fund"), and Belvedere
Capital Partners II LLC, the General Partner of Fund and a Delaware limited
liability company (the "Partnership").
WHEREAS, SoCal, Bank, Fund and
Partnership entered into a Management Agreement dated as of November 2, 2007
(the "Agreement");
WHEREAS, SoCal has entered
into an Agreement to Merge and Plan of Reorganization dated as of July 13, 2007
and subsequently amended on September 4, 2007 and January 29, 2008 pursuant to
which SoCal will acquire Spectrum Bank, Irvine, California (as so amended the
"Spectrum Acquisition Agreement"); -
WHEREAS, the Parties wish to
make a change and an amendment to the Agreement which they believe to be in
their respective best interest to reflect the Spectrum Acquisition
Agreement;
NOW, THEREFORE, in
consideration of the premises and mutual promises of the Parties, the Parties
hereto agree as follows:
1. At the effective
time of the Spectrum Bank transaction as provided for in the Spectrum
Acquisition Agreement, Section 2.1 is hereby amended to read as
follows:
"2.1 Services of the
Partnership.The Partnership shall provide its
monitoring
abilities and its management expertise and experience to SoCal and its
subsidiary banks. Such services may include, but not be limited to, regular
monitoring of the business of SoCal and its subsidiary banks, evaluating and
formulating corporate strategy and aiding in implementation, augmenting
management talent through the Partnership's personnel or contacts, assisting in
the evaluation of new geographic or customer markets to expand business and new
customer products, identifying and negotiating group purchase discounts,
optimizing the capital structure of SoCal and its subsidiary banks through its
contacts in the capital markets, assisting in the training of personnel, and
consulting on data processing, compensation planning and branch and site
expansion and selection."
2. At the
effective time of the Spectrum Bank transaction as provided for in the
Spectrum
Acquisition Agreement, Sections 3.1, 3.2, 3.3 and 3.4 are hereby amended to read
as follows:
"3.1 Management
Fee. In connection with the services to be provided under Section 2.1,
SoCal shall pay a yearly fee to the Partnership equal to 5% of the combined
pre-tax income of all SoCal's subsidiary banks; provided, however, in no event
shall such yearly fee be less than $200,000 nor more than $750,000. Fees will be
paid on a quarterly basis as soon as reasonably practicable after the end of
each fiscal quarter based upon the financial statements of the subsidiary banks
relating to such quarter. Pre-tax net income shall be determined in accordance
with generally accepted accounting principals.
3.2 Deferral.
If as a result of any regulatory or financial disability, any
of the
fees provided for in Section 3.1 cannot be timely paid, SoCal will pay them as
soon as such regulatory or financial disability is removed. Until so paid, the
amount owed to the Partnership shall bear interest at the Wall
Street Journal published prime rate as changed from time to time.
Interest payments shall be made to the Partnership monthly unless the regulatory
or financial disability prevents such payments. In such event, accrued and
unpaid interest shall be paid at the time when the amount of the fee is actually
paid.
3.3 Expenses.
SoCal shall reimburse the Partnership, upon its demand, for all
of its reasonable out-of-pocket expenses incurred in connection with its
provision of services hereunder. The Partnership shall provide an itemized
statement of its expenses and shall make appropriate allocations of such
expenses between SoCal and its subsidiary banks based upon the relative benefits
that each has received as a result of such services. Any expenses reimbursed
pursuant to this Section must be in compliance with Section 23B of the Federal
Reserve Act.
3.4 Indemnification.
SoCal agrees to indemnify the Partnership and Fund and its affiliates
(each an "Indemnified Party") to the fullest extent permitted by law, from and
against any and all losses, penalties, judgments, suits, costs, claims,
liabilities, damages and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) (collectively "Losses"), incurred by, imposed
upon or asserted against any of the Indemnified Parties as a result of,
relating to or arising out of any litigation, claims, suits or proceedings to
which such Indemnified Party is made a party (other than as a plaintiff) or any
penalties, costs, claims, liabilities damages or expenses suffered by such
Indemnified Party, in each case arising from or relating to the operations or
acquisition of SoCal or its subsidiary banks (and any successor or any of
their subsidiaries), except for any such Losses arising on account of such
Indemnified Party's gross negligence or
willful misconduct, and if and to the extent that the foregoing undertaking may
be unenforceable for any reason, SoCal hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Losses which is
permissible under applicable law. Each such Indemnified Party shall be
reimbursed for all indemnified Losses as they are incurred; provided, that if a final and
non-appealable judicial determination shall be made that such Indemnified Party
is not entitled to be indemnified for Losses, such Indemnified Party shall repay
to SoCal, the amount of such Losses for which SoCal shall have reimbursed such
Indemnified Party. Notwithstanding anything to the contrary contained herein, no
Indemnified Party shall be entitled to any indemnity hereunder for any Loss that
relates solely to the decrease in the value of the SoCal common stock. No
indemnification shall be permitted hereunder that would be prohibited pursuant
to the provisions of Part 359 of the Federal Deposit Insurance Corporation's
regulations."
3. Capitalized
terms used herein and not otherwise defined shall have the same meaning
as set forth in the Agreement.
4. This
First Amendment may be entered into in one or more counterparts, all of
which
shall be considered one and the same instrument, and it shall become effective
when one or more counterparts have been signed by each of the Parties and
delivered to the other Parties, it being understood that all Parties need not
sign the same counterpart.
5. Except
as herein amended, the Agreement shall remain in full force and
effect.
6. This
First Amendment shall be governed by and construed in accordance with the
laws of
the State of California.
WITNESS,
the signature of Belvedere SoCal as of the 29th day of January, 2008, set by its
Chairman and its Secretary, pursuant to a resolution of its)s and of
directors,
acting by
at least a majority:
| /s/ Xxxxxx Xxxxx | |||
| By: | Xxxx Xxxx | By: | Xxxxxx Xxxxx |
| Chairman | Secretary |
WITNESS,
the signature of Belvedere Capital Fund II L.P. as of the 29th day of January,
2008, set by the Managing Member of its General Partner pursuant to its
authority:
WITNESS,
the signature of Belvedere Capital Partners II LLC, as of the 29th day of
January, .48, set by Managing Member pursuant to its
authority:
| /s/ Xxxxxx Xxxxx | |
| By: | Xxxxxx Xxxxx |
| Managing Member |
WITNESS,
the signature of Professional Business Bank, as of the 29th day of January,
2008, set by its Chairman and its Secretary, pursuant to a resolution of its
board of directors, acting by at least a majority:
| /s/ Xxxxxx Xxxxx | |||
| By: | Xxxx Xxxx | By: | Xxxxxx Xxxxx |
| Chairman | Secretary |
| /s/ Xxxxxx Xxxxx | |
| By: | Xxxxxx Xxxxx |
| Managing Member |
WITNESS,
the signature of Belvedere SoCal as of the 29th day of January, 2008, set by its
Chairman and its Secretary, pursuant to a resolution of its board of directors,
acting by at least a majority:
| /s/ Xxxx Xxxx | |||
| By: | Xxxx Xxxx | By: | Xxxxxx Xxxxx |
| Chairman | Secretary |
WITNESS,
the signature of Belvedere Capital Fund II L.P. as of the 29th day of January,
2008, set by the Managing Member of its General Partner pursuant to its
authority:
| By: | |
| Managing Member |
WITNESS,
the signature of Belvedere Capital Partners II LLC, as of the 29th day of
January, 2008, set by its Managing Member pursuant to its
authority:
| By: | |
| Managing Member |
WITNESS,
the signature of Professional Business Bank, as of the 29th day of January,
2008, set by its Chairman and its Secretary, pursuant to a resolution of its
board of directors, acting by at least a majority:
| /s/ Xxxx Xxxx | |||
| By: | Xxxx Xxxx | By: | Xxxxxx Xxxxx |
| Chairman | Secretary |
