AMENDMENT TO THE THIRD
Exhibit
99.2
AMENDMENT
TO THE THIRD
AMENDED
AND RESTATED
THIS AMENDMENT TO THE THIRD AMENDED AND
RESTATED ADVISORY SERVICES AGREEMENT (“Amendment”),
effective as of December 31, 2007, by and between American Mortgage Acceptance
Company, a Massachusetts real estate investment trust (the “Trust”) and
Centerline/AMAC Manager 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, and
as amended and restated pursuant to a Second Amended and Restated Advisory
Services Agreement effective as of March 28, 2006, as amended on July 26, 2006,
and as further amended and restated pursuant to the Third Amended and Restated
Advisory Services Agreement effective as of March 19, 2007 (collectively, as so
amended and amended and restated, the “Advisory Services
Agreement”), pursuant to which, among other matters, the Advisor is
entitled to receive an asset management fee (the “Asset Management
Fee”), pursuant to Section 11 of the
Agreement and reimbursement for expenses, pursuant to Section
15(b);
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 Asset Management Fee and the expense
reimbursement structure; and
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:
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1.
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Amendment to Section
10(j). Section 10 (j) of the Agreement is hereby deleted
and replaced in its entirety by the
following:
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(j) "Company
Equity" means, for purposes of
calculating the Asset Management Fee, for any month the sum of the net proceeds
from any issuance of the Company’s Common Shares, after deducting any
underwriting discounts and commissions and other expenses and costs relating to
the issuance, plus (or minus) the Company’s retained earnings (or deficit) at
the end of such month (without taking into account any non-cash equity
compensation expense incurred in current or prior periods and modified to
exclude unrealized losses recognized in earnings that result from changes in
market values of securities classified as available-for-sale), which amount
shall be reduced by any amount that the Company pays for repurchases of Common
Shares; provided, that the foregoing calculation of Company Equity shall be
adjusted to exclude one-time events pursuant to changes in GAAP, as well as
non-cash charges after discussion between Advisor and the Independent Trustees
and approval by a majority of the Independent Trustees in the case of non-cash
charges.
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2.
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Amendment to Section
15(b). Section 15(b) of the Agreement is hereby deleted
and replaced in its entirety by the
following:
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(b) Reimbursement of
Advisor. The Company shall pay the Advisor an expense
reimbursement payment for each fiscal quarter in an amount equal to $400,000
(the “Expense Reimbursement Payment”). In consideration of the
Expense Reimbursement Payment, the Advisor shall bear all of its expenses
incurred in connection with the performance of its obligations under this
Agreement. The Company shall pay the Expense Reimbursement Payment on
each of the following dates: March 31, June 30, September 30 and
December 31.
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3.
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Amendment to Section
16. Section 16 of the Agreement is hereby deleted and
replaced in its entirety by the
following:
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Section
16. Intentionally deleted.
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.
[Signature
Page Follows]
2
IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be effective as of the date first above
written.
| AMERICAN MORTGAGE ACCEPTANCE COMPANY | ||||
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By:
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/s/ Xxxxxx X. Xxxx | |||
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Name:
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Xxxxxx X. Xxxx | |||
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Title:
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Chief Financial Officer | |||
| CENTERLINE/AMAC MANAGER INC. | ||||
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By:
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/s/ Xxxx X. Xxxxxxxxx | |||
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Name:
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Xxxx X. Xxxxxxxxx | |||
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Title:
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Vice President | |||
[Signature
Page to Amendment]
