FIRST AMENDMENT AND EXTENSION
Exhibit
10.1b
FIRST
AMENDMENT AND EXTENSION
FIRST
AMENDMENT AND EXTENSION, dated as of March 11, 2009 (this “First Amendment”), to
the Amended and Restated Investment Advisory Agreement, dated as of March 31,
2008 (the “Management Agreement”), by and between Anthracite Capital, Inc. (the
“Company”), a Maryland corporation, and BlackRock Financial Management, Inc.
(the “Investment Manager”), a Delaware corporation.
WHEREAS,
the Company desires to retain the Investment Manager to acquire, sell and
otherwise manage the investments of the Company and to perform certain
supervisory services for the Company in the manner and on the terms set forth in
the Management Agreement and herein;
WHEREAS,
Section 7 of the Management Agreement provides, among other things, that
successive extensions to the Management Agreement, each for a period not to
exceed one year, may be made by agreement between the Company and the Manager,
with the approval of a majority of the Unaffiliated Directors (as defined in the
Management Agreement);
WHEREAS,
Section 5 of the Management Agreement provides for compensation of the
Investment Manager;
WHEREAS,
on March 11, 2009, the Unaffiliated Directors approved the extension of the
Management Agreement and approved amendments to the terms of the compensation of
the Investment Manager, in each case in accordance with the terms
hereof;
WHEREAS,
Section 12 of the Management Agreement provides that the Management Agreement
shall not be amended, changed, modified, terminated or discharged in whole or in
part except by an instrument in writing signed by all parties thereto, or their
respective successors or assigns, or otherwise as provided therein;
and
WHEREAS,
the Investment Manager and the Company are all the parties to the Management
Agreement and have agreed, subject to the terms and conditions hereof, to amend
the Management Agreement.
NOW
THEREFORE, in consideration of the mutual promises and agreements herein
contained and other good and valuable consideration, the receipt of which is
hereby acknowledged, it is agreed by and between the parties hereto as
follows:
1. Extension. The
term of the Management Agreement, as amended hereby and as may be further
amended, restated, supplemented or otherwise modified from time to time, shall
be extended for one year with such term expiring on March 31, 2010 pursuant to
Section 7 of the Management Agreement.
2. Amendments to the Management
Agreement.
(a) Section
5(c) of the Management Agreement is hereby amended and restated in its entirety
as follows:
One
hundred percent (100%) of the base management fee and the incentive fee shall be
payable to the Investment Manager in Common Stock, provided, that (i) if the
Common Stock is at any time not listed on the New York Stock Exchange or (ii) if
stockholder approval is required for any issuance of the Common Stock and such
required stockholder approval has not been obtained, the base management fee and
the incentive fee, and any accrued base management fees and incentive fees,
shall be payable to the Investment Manager in cash. Notwithstanding
the foregoing, the Unaffiliated Directors and the Investment Manager may from
time to time mutually agree to defer the payment of any base management fee and
incentive fee, in whole or in part, and such deferred payments shall be payable
in cash unless the Unaffiliated Directors and the Investment Manager mutually
agree otherwise.
(b) Section
5(f) of the Management Agreement is hereby amended and restated in its entirety
as follows:
Subject
to Section 5(c), the Company shall pay to the Investment Manager, which payment
shall be part of the base management fee, a number of shares of Common Stock
equal to one half of one percent (0.5%) of the total number of shares of Common
Stock outstanding as of the tenth trading day of the Window Period that
commences in the fourth quarter of each year or, if there is no such Window
Period, as of December 31 of each year, unless the Unaffiliated Directors and
the Investment Manager mutually agree otherwise. The Company shall
pay such shares as soon as practicable after calculation of the shares
payable.
(c) All other
terms of the Management Agreement remain unchanged.
3. Assignment. This
First Amendment may not be assigned without the prior written consent of all the
parties to this First Amendment. For the foregoing purposes, “assigned” shall
have the meaning ascribed to it under the Investment Advisers Act of 1940, as
amended, and the rules promulgated thereunder.
4. Notices. Any
notice under this First Amendment shall be in writing to the other party at such
address as the other party may designate from time to time for the receipt of
such notice and shall be deemed to be received on the earlier of the date
actually received or on the fourth day after the postmark if such notice is
mailed first class postage prepaid.
5. Governing
Law. This First Amendment shall be construed in accordance
with the laws of the State of New York for contracts to be performed entirely
therein without reference to choice of law principles thereof.
6. Severability. The
invalidity or unenforceability of any provision of this First Amendment shall
not affect the validity of any other provision, and all other provisions shall
remain in full force and effect.
7. Entire
Agreement. This instrument contains the entire agreement
between the parties as to the rights granted and the obligations assumed in this
instrument.
8. Counterparts. This
First Amendment may be signed by the parties in counterparts which together
shall constitute one and the same agreement among the parties.
9. Manager
Brochure. The Company hereby acknowledges that it has received
from the Investment Manager a copy of the Investment Manager’s Form ADV, Part
II, at least forty-eight hours prior to entering into this First
Amendment.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have caused the foregoing instrument to be
executed by their duly authorized officers, all as of the date and the year
first above written.
| ANTHRACITE CAPITAL, INC. | |||
|
|
|
/s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | |||
| Title: Chief Executive Officer | |||
| BLACKROCK FINANCIAL MANAGEMENT, INC. | |||
|
|
|
/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
| Title: Managing Director | |||
