Exhibit 10.1a
FIRST AMENDMENT TO
AMENDED AND RESTATED MANAGEMENT AGREEMENT
FIRST AMENDMENT, dated as of May 22, 2001 (the "First Amendment"), to AMENDED
AND RESTATED MANAGEMENT AGREEMENT, dated as of May 19, 2000 (the "Amended and
Restated Agreement"), by and among SPECIALTY MORTGAGE TRUST INC., a Maryland
corporation (the "Company"), and SPECIALTY FINANCIAL, a Nevada corporation
(formerly Gonzo Financial) (the "Manager"), with respect to the following:
WITNESSETH:
WHEREAS, the Company invests in mortgage loans and qualifies for the tax
benefits accorded by Sections 856 and 860 of the Internal Revenue Code of 1986,
as amended; and
WHEREAS, the Company has retained the Manager to manage the investments of the
Company and to perform certain administrative services for the Company in the
manner and on the terms set forth in the Amended and Restated Agreement; and
WHEREAS, the Company and the Manager desire to revise the Amended and Restated
Agreement as herein provided.
NOW, THEREFORE, in consideration of the mutual agreements herein set forth, the
parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used but not defined herein shall have
the meanings assigned thereto in the Amended and Restated Agreement.
Section 2. Compensation of the Manager.
(a) Incentive Compensation. Section 6(b) of the Amended and Restated
Agreement is hereby amended to read in its entirety as follows:
(b) Incentive Compensation. The Company will also pay to the Manager
as incentive compensation for each fiscal quarter, an amount
equal to 50% of the net income of the Company, before deduction
of such incentive compensation, in excess of the annualized
return to the Company equal to 12%. The incentive compensation
calculation and payment will be made quarterly in arrears. The
term, "return to the Company" is calculated by the Net Worth for
the quarter by dividing the Company's Taxable Income for the
quarter by the Net Worth for the quarter. For such calculations,
the "Taxable Income" of the Company means the taxable income for
the Company before the Manager's incentive compensation, the
deduction for dividends paid and net operating loss deductions
arising from losses in prior periods. A deduction for the
Company's interest expenses for borrowed money is taken when
calculating Taxable Income. "Net Worth" for any period means the
sum of the gross proceeds from all prior offerings of its equity
securities by the Company, after deducting expenses and costs
relating to such offerings (or for any period in which new
equity securities are issued, the arithmetic weighted average
for the period of the prior offering proceeds and the new
proceeds), plus the Company's beginning retained earnings
(without taking into account any losses incurred in prior
periods and excluding amounts reflecting taxable income to be
distributed as dividends and amount reflecting valuation
allowance adjustments such as accumulated other comprehensive
gain(loss)). The definition "return to the Company" is used only
for purposes of calculating the incentive compensation payable,
and is not related to the actual distributions received by
stockholders. The incentive compensation payments to the Manager
are made before any income distributions are made to the
stockholders of the Company.
29
(c) Waiver of Fourth Quarter Incentive Compensation. The Company and
the Manager agree that no incentive compensation, as determined
by the above amendment to Section 6(b) of the Amended and
Restated Agreement, shall be payable to the Manager with respect
to the quarter ending December 31, 2000 in light of the
inclusion in income for such quarter of substantial deferred
interest collected on an impaired loan. Such deferred interest
would have been spread over prior periods if the loan was not
impaired and hence to include the full deferral amount in the
fourth quarter effectively distorts the Company for such period.
The parties did not intend for incentive compensation to be
payable in this event.
Section 3. Effective Date. This First Amendment shall become effective
as of December 31, 2000. From and after such effective date, all
references in the Amended and Restated Agreement and any other document
or instrument entered into in connection therewith, to the Amended and
Restated Agreement shall be deemed to be references to the Amended and
Restated Agreement as herby amended. This First Amendment is limited,
and except as set forth herein, shall not constitute the modification,
acceptance or waiver of any provision of the Amended and Restated
Agreement, or any other document or instrument entered into in
connection therewith.
Section 4. Execution in Counterparts. This First Amendment may be
executed in counterparts by the parties hereto, each of which
counterparts when executed and delivered shall be an original, but all
of which together shall constitute one and the same instrument. A
complete set of counterparts shall be lodged with the Company and the
Manager.
Section 5. Controlling Law. This First Amendment and the rights and obligations
of the parties hereunder shall be construed in accordance with and governed by
the laws of the State of Nevada.
IN WITNESS WHEREOF, the Corporation has caused these presents to be
signed in its name and on its behalf by its President and witnessed by its
Secretary on November 13, 2001.
WITNESS: SPECIALTY MORTGAGE TRUST, INC.
/s/ Xxxxx Xxxxxxxxxxx III
-----------------------------------
Xxxxx Xxxxxxxxxxx III
President
SPECIALTY MORTGAGE TRUST, INC.
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
Assistant Secretary
30
