Exhibit 10(ak)
SECOND AMENDED AND RESTATED
ADVISORY SERVICES AGREEMENT
BETWEEN
AMERICAN MORTGAGE ACCEPTANCE COMPANY
AND
CHARTERMAC AMI ASSOCIATES, INC.
SECOND AMENDED AND RESTATED ADVISORY SERVICES AGREEMENT dated March 28,
2006 between American Mortgage Acceptance Company, a Massachusetts real estate
investment trust (the "Company"), and CharterMac AMI Associates, Inc., a
Delaware corporation (the "Advisor"). All capitalized terms used herein, and not
otherwise defined, shall have the meanings ascribed to them in Section 10
hereof.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company is a business trust organized under the laws of the
Commonwealth of Massachusetts, which has qualified as a real estate investment
trust as defined in the Internal Revenue Code of 1986, as the same may be
amended or modified from time to time (which, together with any regulations and
rulings thereunder, is hereafter called the "Code");
WHEREAS, the Company 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 (as amended, the "Advisory Services
Agreement"), pursuant to which the Advisor has been providing services to the
Company since such date;
WHEREAS, the Independent Trustees of the Company have approved certain
changes to the existing Advisory Services Agreement which will be effective upon
the expiration of the current term of the Advisory Services Agreement on March
28, 2006;
WHEREAS, the Company desires to continue to avail itself of the experience,
sources of information, advice, assistance and certain facilities available to
the Advisor and to have the Advisor undertake the duties and responsibilities
hereinafter set forth, on behalf of and subject to the supervision of the
Trustees of the Company, all as provided herein;
WHEREAS, the Advisor is willing to render such services, subject to the
supervision of the Trustees, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
IT IS AGREED that the Advisory Services Agreement is amended and restated as
follows:
1. DUTIES OF ADVISOR. The Company hereby continues to retain the Advisor as
the advisor of the Company to perform the services hereinafter set forth, and
the Advisor hereby accepts such appointment, subject to the terms and conditions
hereinafter set forth. In performance of this undertaking, subject to the
supervision of the Trustees and consistent with the provisions of the Company's
Declaration of Trust, the Advisor shall:
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(i) obtain for the Company, furnish and/or supervise the services
necessary to perform any ministerial functions in connection with the management
of the day-to-day operations of the Company subject to the supervision of the
Trustees;
(ii) seek out and present to the Company, whether through its own
efforts or those of third parties retained by it, suitable and a sufficient
number of investment opportunities which are consistent with the investment
objectives and policies of the Company ("Company Investment Policy")as adopted
by the Trustees from time to time; the currently effective Company Investment
Policy is set forth on Exhibit A;
(iii) exercise absolute discretion, subject to the Trustees' review,
in decisions to originate, acquire, retain, sell or negotiate for the prepayment
or restructuring of mortgages and other investments of the Company;
(iv) recommend investment opportunities consistent with the Company
Investment Policy and negotiate on behalf of the Company with respect to
potential investments or the disposition thereof;
(v) establish and manage the Company's securitization and capital
markets programs;
(vi) upon request, cause an Affiliate to serve as the owner of record
for the Company's investments if such Affiliate is qualified to do so and in
that capacity to hold escrows, if applicable, on behalf of mortgagors in
connection with the servicing of mortgages, which it may deposit with various
banks including banks with which it may be affiliated;
(vii) obtain for the Company such other services as may be required in
acquiring or disposing of investments, disbursing and collecting the funds of
the Company, paying the debts and fulfilling the obligations of the Company, and
handling, prosecuting and settling any claims of the Company, including
foreclosing and otherwise enforcing mortgages and other liens securing
investments;
(viii) obtain for the Company such services as may be required for
property management, mortgage brokerage and servicing, and other activities
relating to the investment portfolio of the Company;
(ix) evaluate, structure and negotiate potential prepayments or sales
of mortgages and other investments and, if applicable, coordinate with
government agencies and government sponsored entities in connection therewith;
(x) from time to time, or as requested by the Trustees, make reports
to the Company as to its performance of the foregoing services; and
(xi) do all things necessary to assure its ability to render the
services contemplated herein.
2. FIDUCIARY RELATIONSHIP. The Advisor, as a result of its relationship
with the Company pursuant to this Agreement, stands in a fiduciary relationship
with the Shareholders of the Company.
3. NO PARTNERSHIP OR JOINT VENTURE. The Company and the Advisor are not
partners or joint venturers with each other and nothing herein shall be
construed to make them partners or joint venturers or impose any liability as
such on either of them.
4. RECORDS. At all times, the Advisor shall keep books of account and
records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by the Company at any time during the
ordinary business hours of the Advisor.
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5. REIT QUALIFICATION. Anything else in this Agreement to the contrary
notwithstanding, the Advisor shall refrain from any action (including, without
limitation, furnishing or rendering services to tenants of property or managing
or operating real property) which, in its sole judgment made in good faith, or,
in the judgment of the Trustees, provided that the Trustees give the Advisor
written notice to such effect, would (a) adversely affect the status of the
Company as a real estate investment trust pursuant to Section 856 of the Code;
(b) violate any law, rule, regulation or statement of policy of any governmental
body or agency having jurisdiction over the Company or over its securities, or
(c) be prohibited by the Company's Declaration of Trust.
6. BANK ACCOUNTS. The Advisor may establish and maintain one or more bank
accounts in the name of the Company or in its own name as agent for the Company
and may collect and deposit in and disburse from any such account, any money on
behalf of the Company, under such terms and conditions as the Trustees may
approve, provided that no funds in such account shall be commingled with funds
of the Advisor. From time to time and upon appropriate request, the Advisor
shall render appropriate accounting of such collections and payments to the
Trustee and the auditors of the Company.
7. BOND. If required by the Trustees, the Advisor will maintain a fidelity
bond with a responsible surety company in such amounts as may be required by the
Trustees, covering all partners thereof together with employees and agents of
the Advisor handling funds of the Company and investment documents or records
pertaining to investments of the Company. Such bonds shall inure to the benefit
of the Company in respect of losses from acts of such partners, employees and
agents through theft, embezzlement, fraud, negligence, error or omission or
otherwise. The premiums on such bonds shall be paid by the Company.
8. INFORMATION FURNISHED ADVISOR. (a) The Trustees shall, at all times,
keep the Advisor fully informed with regard to the then current Company
Investment Policy including any specific types of investments desired, the
desired geographical areas of investments, and any criteria or conditions
established by the Trustees as to whether the Company will make a particular
investment, the capitalization policy of the Company (including the policy with
regard to the incurrence of indebtedness by the Company) and their intentions as
to the future operations of the Company. In particular, the Trustees shall
notify the Advisor promptly of their intention to either sell or otherwise
dispose of any of the Company's investments, to make any new investment, to
incur any indebtedness or to issue any additional Shares in the Company.
(b) The Company shall furnish the Advisor with a certified copy of all
financial statements of the Company, a signed copy of each report prepared by
the independent certified public accountants and such other information with
regard to the Company's affairs as the Advisor may from time to time reasonably
request.
9. CONSULTATION AND ADVICE. In addition to the services described above,
the Advisor shall consult with the Trustees and shall, at the request of the
Trustees of the Company, furnish advice and recommendations with respect to
other aspects of the business and affairs of the Company.
10. DEFINITIONS. As used herein, the following terms shall have the
meanings set forth below:
(a) "ADJUSTED FUNDS FROM OPERATIONS" means net income (computed in
accordance with GAAP) including realized gains (or losses) from debt
restructuring and sales of assets, plus depreciation and amortization on real
property, and after adjustments for unconsolidated partnerships and joint
ventures.
(b) "ADVISOR" shall mean CharterMac AMI Associates, Inc.
(c) "AFFILIATE" shall mean (i) any Person directly or indirectly
controlling, controlled by or under common control with another Person, (ii) any
Person owning or controlling 10% or more of the outstanding voting securities or
beneficial interests in such other Person, (iii) any officer, director, trustee,
or general partner of such Person, and (iv) if such other Person is an officer,
director, trustee or partner of another entity, then the entity for which that
Person acts in any such capacity.
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(d) "AFFILIATED PROGRAMS" shall mean public or private investment
partnerships or, any similar programs organized by the Sponsor, any successors
to such programs or a combination of such programs.
(e) "AGREEMENT" shall mean this Amended and Restated Advisory Services
Agreement.
(f) "ANNUAL INCENTIVE FEE" shall have the meaning set forth in Section
12(b) of this Agreement.
(g) "ASSET MANAGEMENT FEE" shall mean the fees payable to the Advisor
pursuant to Section 11 of this Agreement.
(h) "CAD" shall mean cash available for distribution, which shall
consist of the Company's net income (as determined pursuant to GAAP) adjusted
for certain non-cash charges (as determined pursuant to GAAP).
(i) "CODE" shall mean the Internal Revenue Code of 1986, as amended,
or corresponding provisions of subsequent revenue laws (together with any
regulations and rulings thereunder).
(j) "COMPANY" shall mean American Mortgage Acceptance Company, a
Massachusetts business trust.
(k) "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), which amount shall be reduced by any amount that
the Company pays for repurchases of Common Shares; provided, that the foregoing
calculation of 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 Directors and approval by a majority of the Independent
Directors in the case of non-cash charges.
(l) "DECLARATION OF TRUST" shall mean the Third Amended and Restated
Declaration of Trust of the Company, as amended and/or restated from time to
time.
(m) "DISTRIBUTIONS " shall mean any cash distributed to Shareholders
arising from their interest in the Company.
(n) "GAAP" shall mean generally accepted accounting principles applied
on a consistent basis.
(o) "INDEPENDENT TRUSTEE" shall mean the Trustees who (i) are not
affiliated, directly or indirectly, with the Advisor, whether by ownership of,
ownership interest in, employment by, any material business or professional
relationship with, or service as an officer or director of the Advisor, or its
Affiliates, (ii) do not serve as a director or Trustee for more than two other
REITs organized by the Sponsor, and (iii) perform no other services for the
Company, except as Trustees. For this purpose, an indirect relationship shall
include circumstances in which a member of the immediate family of a Trustee has
one of the foregoing relationships with the Advisor or the Company.
(p) "PERSON" shall mean and include individuals, corporations, limited
partnerships, general partnerships, limited liability companies, joint stock
companies or associations, joint ventures, companies, trusts, banks, trust
companies, land trusts, business trusts or other entities and governments and
agencies and political subdivisions thereof.
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(q) "PROSPECTUS" shall mean the final prospectus in connection with
the registration of the Shares filed with the Securities and Exchange Commission
on Form S-11, as amended.
(r) "REIT" shall mean a corporation or trust which qualifies as a real
estate investment trust described in Sections 856 through 860 of the Code (the
"REIT provisions").
(s) "SHAREHOLDER" shall mean a holder of the Shares.
(t) "SHARES" shall mean the shares of beneficial interest, par value
$.10 per share, of the Company.
(u) "SPONSOR" shall mean any Person directly or indirectly
instrumental in organizing, wholly or in part, the Company or any Person who
will manage or participate in the management of the Company and any Affiliate of
such Person, but does not include (i) any Person whose only relationship with
the Company is that of an independent asset manager and whose only compensation
from the Company is as such, and (ii) wholly independent third parties such as
attorneys, accountants and underwriters whose only compensation is for
professional services.
(v) "TRUSTEES" shall mean, collectively, the Persons who constitute
the Board of Trustees of the Company.
11. ASSET MANAGEMENT FEE. Advisor shall receive an asset management fee
equal to 1.75% per annum of Company Equity. The asset management fee shall be
calculated and paid in cash monthly in arrears. Advisor shall make available the
monthly calculation of the asset management fee to the Company within fifteen
(15) days following the last day of each calendar month, and the Company shall
pay the Advisor the asset management fee within five (5) business days
thereafter.
12. OTHER FEES/COMPENSATION TO THE ADVISOR.
(a) ORIGINATION POINTS. The Advisor shall be entitled to receive, with
respect to each investment originated by the Company, the origination points, if
any, paid by borrowers. In connection with the acquisition of investments for
the Company, the Advisor may also act as an advisor to third parties which
participate with the Company in such investments and may receive origination
points, if any, from such third parties or their borrowers.
(b) 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 (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)
exceed
(2) an amount equal to the greater of:
(a) (i) the weighted average of (x) $20 (the price per Share 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
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(b) $1.45
multiplied by
(B) the weighted average number of Shares outstanding during such
year.
(c) SERVICING FEES AND OTHER COMPENSATION FROM THIRD PARTIES. The
Advisor shall be entitled to receive all servicing fees associated with assets
under the Company's management. To the extent that the Company participates with
a third party in connection with investments, the Advisor may receive special
servicer fees and other fees and compensation from such third party.
13. STATEMENTS. Prior to the payment of any fees hereunder, the Advisor
shall furnish to the Company a statement showing the computation of the fees, if
any, payable under Sections 11, 12 and 14 hereof.
14. COMPENSATION FOR ADDITIONAL SERVICES.
(a) PROPERTY MANAGEMENT. In the event the Company forecloses on a
property on which it holds a mortgage, the Company may be required to take over
the management of the property. In such cases, the Advisor or an Affiliate of
the Advisor may be retained to provide property management services at rates and
on terms no less favorable to the Company than those customary for similar
services, if such entity has knowledge of and experience in the area. In no case
shall such fee (including all rent-up, leasing, and re-leasing fees and bonuses
paid to any person) exceed 5% of the gross revenues from such properties.
(b) PROPERTY DISPOSITIONS FOLLOWING FORECLOSURE. If the Company
forecloses on a property securing a mortgage and sells such property, the
Advisor or an Affiliate of the Advisor may be entitled to a subordinated real
estate commission equal to the lesser of (i) 3% of the gross sales price of such
property received by the Company or (ii) one-half of the normal and competitive
rate customarily charged by unaffiliated parties rendering similar services, and
such fees shall be paid only if the Advisor or Affiliate thereof provides a
substantial amount of services in the sales effort.
15. EXPENSES OF THE COMPANY. (a) The Company shall pay all of its expenses,
except those set forth in paragraph 16 hereof. Without limiting the foregoing,
it is specifically agreed that the following expenses of the Company shall be
paid by the Company and shall not be borne by the Advisor:
(i) the cost of money borrowed by the Company;
(ii) taxes an income and taxes and assessments on real property and
all other taxes applicable to the Company;
(iii) fees and expenses paid to independent contractors, unaffiliated
mortgage servicers, consultants, managers and other agents employed by or on
behalf of the Company;
(iv) expenses directly connected with the ownership, and disposition
of investments, or other property and with the origination or purchase of
investments (including the costs of foreclosure, insurance premiums, legal
services, brokerage and sales commissions, maintenance, repair and improvement
of property);
(v) expenses of maintaining and managing real estate equity interests,
processing and servicing mortgage and other loans and managing the Company's
other investments;
(vi) insurance coverage in connection with the business of the Company
(including officers' and trustees' liability insurance);
(vii) the expenses of revising, amending, converting, modifying or
terminating the Company or revising, amending or modifying its organizational
documents;
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(viii) expenses connected with payments of interest or Distributions
in cash or any other form made or caused to be made by the Trustees to
Shareholders;
(ix) all expenses connected with communications to Shareholders and
other bookkeeping and clerical work necessary in maintaining relations with the
Shareholders, including the cost of printing and mailing certificates for
securities, proxy solicitation materials and reports to holders of the Company's
securities;
(x) the cost of any accounting, statistical or bookkeeping equipment
necessary for the maintenance of the books and records of the Company;
(xi) transfer agent's and registrar's fees and charges;
(xii) other legal, accounting and auditing fees and expenses as well
as any costs incurred in connection with any other litigation in which the
Company is involved and in the examination, investigation or other proceedings
conducted by any regulatory agency with respect to the Company;
(xiii) all expenses relating to any office or office facilities
maintained by the Company or any Subsidiary exclusive of the main office of the
Advisor, including, without limitation, rent, telephones, utilities, office
furniture, equipment, machinery and other office expenses for any persons
employed by the Company;; and
(xiv) the Company's pro rata portion of rent, telephone, utilities,
office furniture, equipment, machinery and other office, internal and overhead
expenses of the Advisor and its Affiliates required for the Company's
operations.
(b) The Company shall reimburse the Advisor and its Affiliates for (i)
the actual costs to the Advisor or its Affiliates of goods, materials and
services used for and by the Company obtained from unaffiliated parties; (ii)
administrative services necessary to the operation of the Company and (iii) the
costs of certain personnel employed by the Company and directly involved in the
organization and business of the Company (including persons who may be employees
or officers of the Advisor and its Affiliates) and for legal, accounting,
transfer agent, reinvestment and redemption plan administration, data
processing, duplicating and investor communications services performed by
employees or officers of the Advisor and its Affiliates which could be performed
directly for the Company by independent parties. The amounts charged to the
Company for services performed pursuant to clause (ii) above will not exceed the
lesser of (a) the actual cost of such services, or (b) the amount which the
Company would be required to pay to independent parties for comparable services.
No reimbursement will be allowed to the Advisor or its Affiliates for services
performed pursuant to clause (ii) above unless the Advisor or its Affiliates
have the appropriate experience and expertise to perform such services.
(c) The Company will reimburse the Advisor for any travel expenses
incurred in connection with the services provided hereunder and for advertising
expenses incurred by it in seeking any investments or seeking the disposition of
any investments held by the Company.
16. EXPENSES OF THE ADVISOR. Except as otherwise provided herein and
without regard to the amount of compensation received hereunder by the Advisor,
the Advisor shall bear the following expenses:
(i) employment expenses of the Advisor's or its Affiliates' personnel
(including partners and directors and officers thereof and employees of the
Company who are Trustees, officers and employees of the Advisor), including, but
not limited to, fees, salaries, wages, payroll taxes, travel expenses (except as
set forth pursuant to Section 15(c) above) and the cost of employee benefit
plans and temporary help expenses;
(ii) advertising expenses (except as set forth pursuant to Section
15(c) above);
Notwithstanding the provisions of Section 16, the Company shall reimburse the
Advisor for the expenses set forth in Section 15(b) and 15(c) above.
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17. INTENTIONALLY DELETED.
18. OTHER ACTIVITIES OF ADVISOR. Nothing in this Agreement shall prevent
the Advisor or any of its Affiliates from engaging in other business activities
related to real estate, mortgage investments or other investments whether
similar or dissimilar to those made by the Company or from acting as advisor to
any other person or entity having investment policies whether similar or
dissimilar to those of the Company (including another real estate investment
trust). However, before the Advisor, its partners, their officers and directors,
and any person controlled by the partners of the Advisor or their officers and
directors may take advantage of an opportunity for their own account or present
or recommend it to others (except for the presentation and recommendation of
equally suitable investment opportunities to Affiliated Programs, which shall be
governed by the procedures set forth in the Company Investment Policy), they are
obligated to present an investment opportunity to the Company if (i) such
opportunity is within the Company's investment objectives and policies, (ii)
such opportunity is of a character which could be taken by the Company, and
(iii) the Company has the financial resources to take advantage of such
opportunity.
19. TERM; TERMINATION OF AGREEMENT .
(a) TERM. This Agreement shall remain in full force through March 28,
2007, unless terminated by the Company or Advisor as set forth below, and shall
be renewed automatically for successive one (1) year periods thereafter, until
this Agreement is terminated in accordance with the terms hereof.
(b) NON-RENEWAL. Either party may elect not to renew this Agreement at
the expiration of the initial term or any renewal term for any or no reason by
notice to the other party at least six (6) months prior to the end of the term.
(c) VOLUNTARY TERMINATION. Either party may terminate this Agreement
or any reason or no reason upon prior written notice to the other party (1) in
the case of the Company, at least six (6) months prior to the end of the term,
and (2) in the case of the Advisor, at least three (3) months prior to the end
of the term.
(d) TERMINATION BY THE COMPANY. The Company may terminate this
Agreement effective sixty (60) days after notice of termination from the Company
to Advisor in the event that any act of fraud, misappropriation of funds, or
embezzlement against the Company or other willful and material violation of this
Agreement by Advisor in its corporate capacity (as distinguished from the acts
of any employees of Advisor which are taken without the complicity of any of the
executive officers of Advisor); provided, that such willful and material
violation continues for a period of thirty (30) days after written notice
thereof specifying such violation and requesting that the same be remedied in
such thirty (30) day period.
(e) TERMINATION BY ADVISOR. Advisor may terminate this Agreement
effective upon sixty (60) days prior written notice of termination to the
Company in the event that the Company shall default in the performance or
observance of any material term, condition or covenant in this Agreement and
such default shall continue for a period of thirty (30) days after written
notice thereof specifying such default and requesting that the same be remedied
in such thirty (30) day period.
(f) TERMINATION FEES. In the event the Agreement is not renewed by the
Company or is terminated under Section 19(b) or 19(e), the Company shall pay
Advisor on the termination date: (A) if the termination date occurs on or prior
to March 28, 2010, a termination fee equal to (1) four times the Asset
Management Fee Advisor would have been entitled to receive from the Company
during the 4-calendar quarter period immediately preceding the effective date of
such termination, plus (2) four times the Annual Incentive Fee Advisor would
have been entitled to receive from the Company during the 4-calendar quarter
period immediately preceding the effective date of such termination; or (B) if
the termination date occurs after March 28, 2010, the greater of (1) (a) two
times the Asset Management Fee Advisor would have been entitled to receive from
the Company during the 4-calendar quarter period immediately preceding the
effective date of such termination, plus (b) two times the Annual Incentive
Advisor would have been entitled to receive from the Company during the
4-calendar quarter period immediately preceding the effective date of such
termination or (2) a fee equal to the market rate termination fee payable to
outside advisors of real estate investments trusts. The Company's obligation to
pay a termination fee shall survive the termination of this Agreement.
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(g) SURVIVAL. If this Agreement is terminated pursuant to this Section
19, such termination shall be without any further liability or obligation of
either party to the other, except as otherwise expressly provided herein.]
(h) DISPUTE RESOLUTION. If the Company and the Advisor are unable to
reach an agreement regarding the fees payable to the Advisor upon renewal of
this Agreement pursuant to Section 19(a) or the amount of the applicable
market-rate termination fee pursuant to Section 19(e)(B)(2), any such dispute
shall be settled and determined by arbitration in New York City before a panel
of three arbitrators (who shall be required to be members in good standing of
the American Arbitration Association) pursuant to the Commercial Rules then in
effect of the American Arbitration Association. The parties agree that the
arbitrators shall have the power to award damages, preliminary or permanent
injunctive relief and reasonable attorneys' fees and expenses to any party in
such arbitration. The arbitration award shall be final and binding upon the
parties and judgment thereon may be entered in any court having competent
jurisdiction thereof. The arbitrators shall be governed by and shall apply the
substantive law of the State of New York in making their award.
20. AMENDMENTS. This Agreement shall not be 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 permitted assigns, or
otherwise as provided herein.
21. ASSIGNMENT. This Agreement may not be assigned by the Advisor without
the written consent of the Company, except to a corporation or other person
which controls, is controlled by, or is under common control with the Advisor,
or a corporation, association, trust or other successor organization which may
take over the property and carry on the affairs of the Advisor. Any assignee of
the Advisor shall be bound hereunder to the same extent as the Advisor. This
Agreement shall not be assigned by the Company without the written consent of
the Advisor, except to a corporation, association, trust or other organization
which is a successor to the Company. Such successor shall be bound hereunder to
the same extent as the Company. Notwithstanding anything to the contrary
contained herein, the economic rights of the Advisor hereunder, including the
right to receive all compensation hereunder, may be sold, transferred or
assigned by the Advisor without the consent of the Company.
22. ACTION UPON TERMINATION. From and after the effective date of
termination of this Agreement, pursuant to Section 19 hereof, the Advisor shall
not be entitled to compensation for further service rendered hereunder but shall
be paid all compensation and reimbursed for all expenses accrued through the
date of termination. The Advisor shall forthwith upon such termination:
(a) pay over to the Company all moneys collected and held for the
account of the Company pursuant to this Agreement, after deducting any accrued
compensation and reimbursement for its expenses to which it is then entitled;
(b) deliver to the Company a full accounting, including a statement
showing all payments collected by it and a statement of all moneys held by it,
covering the period following the date of the last accounting furnished to the
Company; and
(c) deliver to the Company all property and documents of the Company
then in the custody of the Advisor.
23. INCORPORATION OF THE DECLARATION OF TRUST. To the extent the
Declaration of Trust imposes obligations or restrictions on the Advisor or
grants the Advisor certain rights which are not set forth in this Agreement, the
Advisor shall abide by such obligations or restrictions and such rights shall
inure to the benefit of the Advisor with the same force and effect as if they
were set forth herein.
24. MISCELLANEOUS. (a)( a) The Advisor assumes no responsibility under this
Agreement other than to render the services called for hereunder in good faith,
and shall not be responsible for any action of the Company in following or
declining to follow any advice or recommendations of the Advisor. Neither the
Advisor nor its directors, officers and employees shall be liable to the
Company, the Shareholders or to any successor or assignee of the Company, except
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by reason of acts constituting bad faith, gross negligence or reckless disregard
of their duties. This shall in no way affect the standard for indemnification
but shall only constitute a standard of liability. The duties to be performed by
the Advisor pursuant to this Agreement may be performed by it or by officers,
directors or by Affiliates of the foregoing under the direction of the Advisor
or delegated to unaffiliated third parties under its direction.
(b) The Advisor shall look solely to the assets of the Company for
satisfaction of all claims against the Company, and in no event shall any
Shareholder of the Company have any personal liability for the obligations of
the Company under this Agreement.
(c) All calculations made in accordance with this Agreement (other
than those calculations which by their terms are not based on GAAP) shall be
based on statements (which may be unaudited, except as specifically provided
herein) prepared on an accrual basis consistent with GAAP, regardless of whether
the Company may also prepare statements on a different basis.
25. NOTICES. Any notice, report or other communication required or
permitted to be given hereunder shall be in writing, and shall be given by
delivering such notice by hand or by certified mail, return receipt requested,
postage pre-paid, at the following addresses of the parties hereto:
American Mortgage Acceptance Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: President
CharterMac AMI Associates, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Either party may at any time change its address for the purpose of this Section
25 by like notice.
26. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
27. GOVERNING LAW. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the State of New York as at the time
in effect.
IN WITNESS WHEREOF, the undersigned have caused this agreement to be signed as
of the day and year first above written.
AMERICAN MORTGAGE ACCEPTANCE COMPANY
By:
---------------------------------------
Name:
Title:
CHARTERMAC AMI ASSOCIATES, INC.
By:
---------------------------------------
Name:
Title:
81
