EXHIBIT 10.2
Amended and Restated Advisory Agreement
between
First Republic Preferred Capital Corporation
and
First Republic Bank
December 1, 2001
Amended and Restated Advisory Agreement
This Amended and Restated Advisory Agreement (this "Agreement") is
entered into as of December 1, 2001, between First Republic Preferred Capital
Corporation, a Nevada corporation (the "Company"), and First Republic Bank, a
Nevada banking corporation (the "Advisor").
WHEREAS, the Company desires to avail itself of the experience and
assistance of the Advisor and to have the Advisor undertake, on the Company's
behalf, the duties and responsibilities set forth in this Agreement, subject to
the control and supervision of the Board of Directors of the Company (the "Board
of Directors") as provided for herein;
WHEREAS, the Advisor desires to render such services to the Company
subject to the control and supervision of the Board of Directors, on the terms
and conditions hereinafter set forth;
WHEREAS, the Company and the advisor are the parties to an Advisory
Agreement dated as of April 30, 1999 (the "Original Agreement"), pursuant to
which the Advisor has been providing advisory services; and
WHEREAS, the Company intends to make a public offering of its securities
and in connection with that offering will expand its portfolio of mortgage
assets; and
WHEREAS, as a result of its growth the Company and the Advisor desire to
amend and restate the Agreement as set forth below to expand the services
provided by the Advisor;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Article 1
Definitions
Section 1.1. Definitions. As used herein, the following terms shall have
the respective meanings set forth below:
"Advisor" has the meaning set forth in the forepart of this Agreement.
"Advisor Termination Date" means the date on which this Agreement
terminates.
"Agreement" means this Advisory Agreement, as amended, modified and
supplemented from time to time.
"Board of Directors" has the meaning set forth in the forepart of this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the forepart of this Agreement.
"Independent Directors" means the members of the Board of Directors who
are not current officers or employees of the Company or current directors,
employees or officers of the Advisor or any affiliate of the Advisor.
"Operating Expenses" for any period means all of the operating expenses
of the Company (with the exception of those expenses to be borne by the Advisor
in accordance with Article 4 hereof).
"Person" means and includes individuals, corporations, limited
partnerships, general partnerships, joint stock companies or associations,
limited liability companies, joint ventures, associations, consortia, companies,
trusts, banks, trust companies, land trusts, common laws trusts, business trusts
or other entities, governments and agencies and political subdivisions thereof.
"REIT" means a "real estate investment trust" under the Code.
Article 2
Duties of the Advisor
The Advisor shall consult with the Board of Directors and the officers
of the Company and shall, at the request of the Board of Directors and/or the
officers of the Company, furnish advice and recommendations with respect to all
aspects of the business and affairs of the Company. Subject to the control and
discretion and at the request of the Board of Directors, the Advisor shall:
(a) administer the day-to-day operations and affairs of the Company,
including, without limitation, the performance or supervision of the functions
described in this Article 2;
(b) monitor the credit quality of the real estate mortgage assets held
by the Company;
(c) advise the Company with respect to the acquisition, management,
financing and disposition of the Company's real estate mortgage assets and the
investment and reinvestment of proceeds from equity financings and of income
from, and principal payments on, the mortgage assets;
(d) represent the Company in its day-to-day dealings with Persons with
whom the Company interacts, including, without limitation, stockholders of the
Company, the transfer agent of the Company, consultants, accountants, attorneys,
securities and other regulators, securities exchanges and automated quotation
systems, servicers of the Company's mortgage loans, custodians, insurers and
banks;
(e) establish and provide necessary services for the Company, including
executive, administrative, accounting, stockholder relations, secretarial,
recordkeeping, copying, telephone, mailing and distribution facilities;
(f) provide the Company with office space, conference room facilities,
office equipment and personnel necessary for the services to be performed by the
Advisor under this Agreement;
(g) arrange, schedule and coordinate the regular and special meetings of
the Board of Directors required for the conduct of the affairs of the Company or
for timely action on any matters the Company is required to act upon and
implement all decisions of the Board of Directors, unless otherwise instructed,
with regard to the Company and its assets;
(h) maintain communications and relations with the stockholders of the
Company, including, but not limited to, responding to inquiries, proxy
solicitations, providing reports to stockholders and arranging and coordinating
all meetings of stockholders;
(i) monitor and supervise the performance of all parties who have
contracts to perform services for the Company, provided that the Advisor shall
have no duty to assume the obligations or guarantee the performance of such
parties under such contracts;
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(j) establish and maintain bank accounts in the name of the Company as
may be required by the Company and approved by the Board of Directors and ensure
that all funds collected by the Advisor in the name or on behalf of the Company
shall be held in trust and shall not be commingled with the Advisor's own funds
or accounts;
(k) make payment on behalf of the Company of all Operating Expenses;
(l) arrange for the execution and delivery of such documents and
instruments by the officers of the Company as may be required in order to
perform the functions herein described and to take any other required action
contemplated by the terms of this Agreement;
(m) maintain insurance for the Company including liability insurance,
errors and omissions policies and officers and directors policies which shall
cover and insure the Company, members of the Board of Directors and the officers
of the Company in appropriate amounts and with prudent deductibles and insurers;
(n) maintain proper books and records of the Company's affairs and
furnish or cause to be furnished to the Board of Directors such periodic reports
and accounting information as may be required from time to time by the Board of
Directors, including, but not limited to, quarterly reports of all income,
expenses and distributions of the Company;
(o) conduct all actions necessary to maintain appropriate accounting
controls and maintain all appropriate documentation of such accounting
procedures and controls;
(p) consult and work with legal counsel for the Company in implementing
Company decisions and undertaking measures consistent with all pertinent
federal, state and local laws and rules or regulations of governmental or
quasi-governmental agencies, including, but not limited to, federal and state
securities laws (including causing the preparation and filing of all reports,
registration statements or other documents with the Securities and Exchange
Commission that are necessary or desirable) and tax laws, and the regulations
promulgated under each of the foregoing;
(q) consult and work with accountants for the Company in connection with
the preparation of financial statements, annual reports and tax returns;
(r) prepare and distribute, in consultation with the accountants for the
Company, annual reports to stockholders that contain audited financial
statements;
(s) furnish reports to the Board of Directors and provide research,
economical and statistical data in connection with the Company's investments;
(t) as reasonably requested by the Company, make reports to the Company
of its performance of the foregoing services and furnish advice and
recommendations with respect to other aspects of the business of the Company;
and
(u) take any other action necessary to allow the Company to continue to
qualify as a REIT for federal income tax purposes.
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Article 3
Compensation of the Advisor
The Company shall pay to the Advisor, for services rendered by the Advisor
under this Agreement, an advisory fee equal to $50,000 per year, or such greater
amount as may be approved by a majority of the Board of Directors as well as a
majority of the Independent Directors, payable in quarterly installments.
Article 4
Expenses of the Advisor
(a) Without regard to the compensation received pursuant to Article 3
hereof, the Advisor shall bear the following expenses:
(i) employment expenses of the personnel employed by the Advisor,
including, without limitation, salaries, wages, payroll taxes and the cost
of employee benefit plans; and
(ii) rent, telephone equipment, utilities, office furniture and
equipment and machinery and other office expenses of the Advisor incurred
in connection with the maintenance of any office facility of the Advisor.
(b) The Company shall reimburse the Advisor within 30 days of a written
request by the Advisor for any Operating Expenses paid or incurred by the
Advisor on behalf of the Company.
Article 5
Records
The Advisor shall maintain appropriate books of account and records
relating to services performed hereunder, and such books of account and records
shall be accessible for inspection by the Board of Directors and representatives
of the Company at all times.
Article 6
REIT Qualification and Compliance
The Advisor shall consult and work with the Company's legal counsel in
maintaining the Company's qualification as a REIT. Notwithstanding any other
provisions of this Agreement to the contrary, the Advisor shall refrain from any
action which, in its reasonable judgment or in the judgment of the Board of
Directors (of which the Advisor has received written notice), may adversely
affect the qualification of the Company as a REIT or which would violate any
laws, rule or regulation of any governmental body or agency having jurisdiction
over the Company or its securities, or which would otherwise not be permitted by
the articles of incorporation or by-laws of the Company. Furthermore, the
Advisor shall take any action which, in its judgment or the judgment of the
Board of Directors (of which the Advisor has received written notice), may be
necessary to maintain the qualification of the Company as a REIT or prevent the
violation of any law or regulation of any governmental body or agency having
jurisdiction over the Company or its securities.
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Article 7
Term; Termination
This Agreement shall be in full force and effect for an initial term ending
on April 30, 2003 and shall be automatically renewed for additional one-year
periods. Notwithstanding the foregoing, the Company may terminate this Agreement
at any time upon 90 days' prior written notice; provided, however, that as long
as any shares of the Company's preferred stock remain outstanding, any decision
by the Company to terminate or modify this Agreement must be approved by a
majority of the Board of Directors, as well as by a majority of the Independent
Directors.
Article 8
Other Activities of the Advisor
(a) Nothing herein contained shall prevent the Advisor, an affiliate of
the Advisor or an officer, director, employee or stockholder of the Advisor from
engaging in any activity, including, without limitation, originating, purchasing
and managing real estate mortgage assets, rendering of services and investment
advice with respect to real estate investment opportunities to any other Person
(including other REITs) and managing other investments (including the
investments of the Advisor and its affiliates).
(b) Officers, directors, employees, stockholders and agents of the Advisor
or of any affiliate of the Advisor may serve as officers, directors, employee or
agents of the Company, but shall receive no compensation (other than
reimbursement for expenses) from the Company for such service.
Article 9
Binding Effect; Assignment
This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective successors and assigns. Neither party may
assign this Agreement or any of its respective rights hereunder (other than an
assignment to a successor organization which acquires substantially all of the
property of such party or, in the case of the Advisor, to an affiliate of the
Advisor) without the prior written consent of the other party to this Agreement.
Article 10
Subcontracting
The Advisor may at any time subcontract all or a portion of its obligations
under this Agreement to one or more affiliates of the Advisor that are involved
in the business of managing real estate mortgage assets without the consent of
the Company. The Advisor may, with the approval of a majority of the Board of
Directors as well as a majority of the Independent Directors, subcontract all or
a portion of its obligations under this Agreement to unrelated third parties.
Notwithstanding the foregoing, the Advisor will not, in connection with
subcontracting any of its obligations under this Agreement, be discharged or
relieved in any respect from its obligations under this Agreement.
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Article 11
Liability and Indemnity of the Advisor
The Advisor assumes no responsibilities under this Agreement other than to
perform the services called for hereunder in good faith. Neither the Advisor nor
any of its affiliates, stockholders, directors, officers or employees will have
any liability to the Company, stockholders of the Company or others except by
reason of acts or omissions constituting gross negligence or willful breach of
any of the Advisor's material obligations under this Agreement. The Company
shall indemnify and reimburse (if necessary) the Advisor, its stockholders,
directors, officers, employees and agents for any and all expenses (including,
without limitation, attorneys' fees and expenses), losses, damages, liabilities,
demands and charges of any nature whatsoever in respect of or arising from any
acts or omissions by the Advisor pursuant to this Agreement, provided that the
conduct against which the claim is made was determined by such Person, in good
faith, to be in the best interests of the Company and was not the result of
gross negligence by such Person or willful breach of any of such Person's
material obligations by such Person. The Advisor agrees that any such
indemnification is recoverable only from the assets of the Company and not from
the stockholders.
Article 12
Action Upon Notice of Non-Renewal or Termination
Upon the giving of notice of non-renewal of this Agreement by the Company
or of the termination of this Agreement by the Company, the Advisor shall not be
entitled to compensation after the Advisor Termination Date for further services
under this Agreement, but shall be paid all compensation accruing to the Advisor
Termination Date and shall be reimbursed for all expenses of the Company paid or
incurred by the Advisor as of the Advisor Termination Date which are
reimbursable by the Company under this Agreement. The Advisor shall promptly
after the Advisor Termination Date:
(a) deliver to the Company all assets and documents of the Company then in
the custody of the Advisor; and
(b) cooperate with the Company and take all reasonable steps requested to
assist the Board of Directors in making an orderly transfer of the
administrative functions of the Company.
Article 13
No Joint Venture or Partnership
Nothing in this Agreement shall be deemed to create a joint venture or
partnership between the parties, whether for purposes of taxation or otherwise.
Furthermore, nothing in this Agreement conveys to, or otherwise grants, the
Advisor the authority to conclude contracts in the name of the Company.
Article 14
Notices
Unless expressly provided otherwise herein, all notices, requests, demands
and other communications required or permitted under this Agreement shall be in
writing and shall be made by hand delivery, certified mail, overnight courier
service, telex or telecopier. Any notice shall be duly addressed to the parties
as follows:
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(a) If to the Company: First Republic Preferred Capital Corporation
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Attention: General Counsel
(b) If to the Advisor: First Republic Bank
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Attention: President and CEO
Either party may alter the address to which communications or copies are
to be sent by giving notice of such change of address in conformity with the
provisions of this Article 14 for the giving of notice.
Article 15
Severability
If any term or provision of this Agreement or the application thereof with
respect to any Person or circumstance shall, to any extent, be invalid or
unenforceable (other than Article 13), the remainder of this Agreement, or the
application of that term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
Article 16
Governing Law
This Agreement is made in the State of Nevada and shall be construed in
accordance with the laws thereof. Each of the parties hereto irrevocably and
unconditionally submits, for itself and its property, to the non-exclusive
jurisdiction of any court sitting in Nevada, and any appellate court thereof, in
any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement in the courts of any jurisdiction. Each of
the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection they may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in the courts of Nevada. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court. The parties hereto hereby agree that the final judgment in any such
action or proceeding shall be conclusive and may be in force in any other
jurisdiction by suit on the judgment or in any other manner provided by law.
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Article 17
Amendments
This Agreement shall not be amended, changed, modified, terminated or
discharged in whole or in part except by an instrument in writing signed by both
parties hereto or their respective successors or assigns, or otherwise as
provided herein.
Article 18
Headings
The article headings herein have been inserted for convenience of
reference only and shall not be construed to affect the meaning, construction or
effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized as of the date first
written above.
FIRST REPUBLIC PREFERRED CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Vice President, General Counsel
FIRST REPUBLIC BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Senior Vice President and Chief
Financial Officer
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