Exhibit 10(y)
AMENDMENT TO THE SECOND
AMENDED AND RESTATED
ADVISORY SERVICES AGREEMENT
THIS AMENDMENT TO THE SECOND AMENDED AND RESTATED ADVISORY SERVICES
AGREEMENT ("AMENDMENT") is made as of the 26th day of July, 2006 by and between
American Mortgage Acceptance Company, a Massachusetts real estate investment
trust (the "TRUST") and CharterMac AMI Associates, Inc., a Delaware corporation
(the "ADVISOR").
WHEREAS, the Trust and the Advisor originally entered into an Advisory
Services Agreement dated as of March 29, 1993, which agreement was amended and
restated pursuant to an Amended and Restated Advisory Services Agreement
effective as of April 6, 1999, as amended on November 29, 2001, February 8,
2002, November 12, 2003 and June 9, 2004, respectively, and as further amended
and restated pursuant to a Second Amended and Restated Advisory Services
Agreement dated as of March 28, 2006, (as so amended and amended and restated,
the "ADVISORY SERVICES AGREEMENT"), pursuant to which, among other matters, the
Advisor is entitled to receive an annual incentive fee (the "ANNUAL INCENTIVE
FEE"), pursuant to SECTION 12(B) of the Agreement; and
WHEREAS, the Trust and the Advisor desire to amend the Agreement in
accordance with the terms of this Amendment in order to revise the calculation
of the Annual Incentive Fee to exclude the impact of gains or losses associated
with changes in the value of fair value xxxxxx;
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements contained herein, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be bound hereby, the Trust and the Advisor agree as follows:
1. AMENDMENT TO SECTION 12(B). Section 12(b) of the Agreement is hereby
deleted and replaced in its entirety by the following:
ANNUAL INCENTIVE FEE. Subject to (1) a minimum annual Distributions being
made to Shareholders from CAD of $1.45 per Share AND (2) the Company
achieving at least annual Adjusted Funds From Operations per share of
$1.60, excluding non-cash gains or losses due to the recording of fair
value xxxxxx (net of the Annual Incentive Fee), the Advisor shall be
entitled to receive incentive compensation for each fiscal year in an
amount equal to the product of:
(A) 25% of the dollar amount by which
(1) Adjusted Funds From Operations of the Company (before the Annual
Incentive Fee) per Share (based on the weighted average number of Shares
outstanding), excluding non-cash gains or losses due to the recording of
fair value xxxxxx
exceed
(2) an amount equal to the greater of:
(a) (i) the weighted average of (x) $20 (the price per Share of the
initial public offering) and (y) the prices per Share of any secondary
offerings by the Company multiplied by
(ii) the Ten-Year U.S. Treasury Rate plus 2% per annum; and
(b) $1.45
multiplied by
(B) the weighted average number of Shares outstanding during such year.
2. NO FURTHER AMENDMENTS. Except as specifically amended by this Amendment,
all of the terms, covenants and conditions of the Agreement shall remain
unmodified and in full force and effect and are hereby ratified and confirmed.
3. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of New York, without giving effect to the conflict of
laws principles thereof.
4. COUNTERPARTS. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together will
constitute one and the same instrument. A facsimile, telecopy or other
reproduction of this Amendment may be executed by one or more parties hereto,
and an executed copy of this Amendment may be delivered by one or more parties
hereto by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for
all purposes as of the date first written above. At the request of any party
hereto, all parties hereto agree to execute an original of this Amendment as
well as any facsimile, telecopy or other reproduction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
AMERICAN MORTGAGE ACCEPTANCE COMPANY
By: /s/Xxxx X. Xxxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
CHARTERMAC AMI ASSOCIATES, INC.
By: /s/Xxxx X. Xxxxxx
-----------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO AMENDMENT]
