Exhibit 10.2
AMENDED AND RESTATED
ACCOUNTING SERVICES AGREEMENT
THIS ACCOUNTING SERVICES AGREEMENT (the "Agreement") is made as of the 15th day
of March, 2007 between BlackRock Financial Management, Inc. ("BlackRock") and
Anthracite Capital, Inc. ("Client"). WHEREAS, Client wishes to engage BlackRock,
and appoint BlackRock as its agent, to provide investment accounting services
for Client as set forth below; WHEREAS, BlackRock and Client have previously
entered into an Accounting Services Agreement dated as of March 9, 2005 (the
"Effective Date"), which the parties wish to amend and restate; NOW, THEREFORE,
the parties agree as follows:
1. Scope of Services. (a) Subject to the terms and conditions of this Agreement,
BlackRock will perform investment accounting services for Client as set forth in
Schedule A (the "Services"), and such additional accounting and other services
as the parties may agree upon in writing from time to time. BlackRock is hereby
authorized to communicate with Client's custodian regarding Client's account and
portfolio and regarding reports and information provided by or pertaining to
Client, Client's custodian, or BlackRock.
(b) Following the Effective Date, BlackRock commenced work on the implementation
process and other tasks (together, the "Conversion") necessary to provide the
Services beginning after the "Services Commencement Date", which date shall be
the date immediately following acceptance of the Conversion by Client.
(c) Client shall be responsible for: (1) coordinating communications among
BlackRock and Client's custodian and advisors; (2) filing any claims in
connection with Client's invested assets (though BlackRock will facilitate
handling of certain claims, such as late-payment claims); (3) representing its
interest in any litigation relating to or involving the invested assets of
Client; (4) coordinating and controlling any movement of assets not relating to
trades and resolving any discrepancies related to the movement of such assets;
(5) notifying BlackRock of all such asset movement activity; (6) ensuring that
all necessary information from Client is timely received by BlackRock (see
Schedule A); and (7) advising BlackRock of, and ensuring all compliance with,
laws, procedures, instructions, and regulations applicable to Client due to the
specific nature of Client's business, including performing all acts required
with regard to any registration or qualification requirements imposed by any
governmental or self-regulatory authority, such as registration with SEC.
Notwithstanding the foregoing, BlackRock in its capacity hereunder may assist
Client in its compliance efforts, as described in Schedule A. BlackRock shall be
entitled to rely on, for all purposes under this Agreement, any and all
instructions provided by or on behalf of Client. BlackRock may require, at its
discretion, that any such instructions be certified to in writing by an officer
of Client.
For the avoidance of doubt, unless otherwise provided in a separate written
agreement with BlackRock, BlackRock's sole responsibility hereunder is to
provide the Services to assist Client in its financial reporting, and Client
shall be solely responsible for (i) monitoring its investments for compliance
with its investment guidelines and (ii) any judgments as to valuation of, or
purchase or sale of, securities in its portfolio; and in any case, (iii)
BlackRock shall have no responsibility hereunder for compliance with or the
content of Client's investment guidelines or for any actions of or conclusions
drawn by Client with respect to its portfolios or securities, whether or not
such conclusions are based on BlackRock's Services.
(d) Client takes sole responsibility for the acts or omissions of its custodian
and will have by the Services Commencement Date instructed its custodian, and
will instruct any future custodian of Client (such instructions to remain in
force during the term of this Agreement), to provide BlackRock (at Client's
request, on custodian's initiative, or at BlackRock's request) with custodian's
reports and other information of Client that BlackRock requires to perform its
duties hereunder.
(e) BlackRock will provide reports to Client as provided for in Schedule A. The
timely production of reports will depend on the timely receipt of complete
Client data.
2. Representations by Client. Client represents and warrants that (a) it will
comply with applicable law in its use of the Services; (b) execution, delivery,
and performance of this Agreement have been duly authorized and shall not
conflict with any obligation of Client, whether arising by contract, operation
of law, or otherwise; (c) this Agreement constitutes a valid, binding obligation
of Client; and (d) Client has all rights and power necessary to appoint
BlackRock as its accounting agent.
3. Representations by BlackRock. BlackRock represents and warrants that (a) it
will comply with applicable law in its performance of the Services; (b)
execution, delivery, and performance of this Agreement have been duly authorized
and shall not conflict with any obligation of BlackRock, whether arising by
contract, operation of law, or otherwise, (c) this Agreement constitutes a
valid, binding obligation of BlackRock, and (d) BlackRock has all rights
necessary to provide the Services contemplated herein.
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4. Fees. (a) Client shall pay BlackRock fees for the Services to be calculated
and payable in the manner set forth in Schedule B (the "Fees").
(b) Certain assumptions regarding implementation of BlackRock's responsibilities
under this Agreement have been made based on information supplied by Client. If
after the Effective Date the composition of Client's portfolios changes
significantly, the parties agree to jointly determine in good faith whether an
increase in the amount of the Fees, and/or any changes to the Services, is
required.
5. Confidential Information. (a) All information regarding this Agreement, the
parties' business and their subsidiaries and affiliates, any documents exchanged
between the parties in connection with the Services, as well as all technology,
processes, trade secrets, contracts, proprietary information, historical or
projected financial information, organizational or operating data, strategic or
management plans, and customer information or lists, whether received before or
after the date hereof ("Confidential Information"), shall be kept in confidence
by each of the parties hereto. Notwithstanding the foregoing, (i) Client may
disclose Confidential Information contained in reports produced by BlackRock
hereunder in the ordinary course of Client's business and (ii) BlackRock may
disclose certain information to third parties in the normal course of business
in performing the Services (e.g., contractors and data vendors), subject to the
requirement that such third parties be bound by confidentiality obligations
substantially equivalent to the terms of this Agreement.
(b) The parties' obligations concerning Confidential Information shall survive
termination or expiration of this Agreement. These confidentiality obligations
shall not apply to information (i) lawfully in the public domain, (ii) lawfully
possessed by the recipient before disclosure by the other party, (iii) lawfully
disclosed to a party by a third party without obligation of confidentiality,
(iv) independently developed by a party without reference to the other party's
Confidential Information, or (v) whose disclosure is compelled by a court or
other competent authority (provided in such case that the compelled party makes
reasonable efforts to help the disclosing party oppose and/or limit such
disclosure).
(c) BlackRock shall be permitted to include Client on its list of clients and
BlackRock may describe the general nature of its work for Client under this
Agreement.
6. Limitations on Liability; Indemnity. (a) Subject to the limitations set forth
herein and the provisions of subsection (c), below, BlackRock shall indemnify
Client against any and all losses, damages, costs, expenses (as they are
incurred, including reasonable attorney's fees), liabilities, claims, and
demands ("Losses") by third parties against Client in connection with this
Agreement to the extent such claims arise out of BlackRock's gross negligence,
fraud, or illegal acts, except to the extent such claims are attributable to
Client's acts or omissions. Other than as set forth in the preceding sentence,
BlackRock shall not be liable for any Losses in connection with this Agreement,
even if arising out of its mistake in judgment, acts or omissions, or erroneous
data or calculations. In no event shall either party be liable for any
consequential, punitive, exemplary, incidental, or other indirect damages.
(b) Client shall indemnify BlackRock against Losses suffered by BlackRock in
connection with this Agreement, and Client further agrees to reimburse BlackRock
for all out-of-pocket expenses (as noted above) incurred by BlackRock in
connection with investigating, preparing for or defending any action or claim,
whether in connection with pending or threatened litigation to which BlackRock
is a party, in each case, as such expenses are incurred or paid. Client,
however, will not be responsible for any Losses that are finally judicially
determined by a court of competent jurisdiction to have resulted from the gross
negligence, fraud, or illegal acts of BlackRock.
(c) Other than with respect to claims for breach of confidentiality, BlackRock's
liability, in the aggregate, shall not exceed the fees payable by Client
hereunder during the twelve months immediately preceding the event giving rise
to the liability. BlackRock's entire liability to Client is set forth in this
Section 6.
7. Force Majeure. Neither BlackRock nor Client shall be responsible for any
delay or failure of performance resulting from causes beyond its control and
without its fault or negligence.
8. Term. (a) The initial term of this Agreement will begin on the Effective Date
and will expire on the 24-month anniversary of the Services Commencement Date.
Thereafter, this Agreement will renew for 12-month terms unless either party
provides written notice to the other party of its desire not to renew at least
60 days in advance of the expiration of the then-current term.
(b) On the written request of Client, BlackRock will use reasonable efforts to
make available an extract of all of Client's data on BlackRock's automated
systems in ASCII File format or hard copy. Upon termination of this Agreement
(and for the period specified by the Investment Advisers Act of 1940 (the "Act")
and regulations promulgated thereunder), BlackRock shall provide copies of such
records at Client's expense as Client may request, to the extent required to be
maintained by the Act.
(c) Either party shall have the right to terminate this Agreement before its
expiration date if the other party commits a material breach of its obligations
that remains uncured more than 30 days after a written notice specifying in
detail the nature of such breach.
(d) In the event that any third parties upon whom BlackRock relies in the
provision of the Services are no
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longer able or willing to provide the requisite services to BlackRock or will
only provide such services on commercially unreasonable terms, then BlackRock
will use commercially reasonable efforts to provide alternatives to such
services. If BlackRock is unable to provide alternatives to any such terminated
services, then it may terminate this Agreement upon notice.
(e) The parties acknowledge that BlackRock and Client are parties to an
investment management agreement (the "IMA") pursuant to which BlackRock provides
Client with certain investment management services. In the event that Client (i)
terminates the IMA as permitted thereunder, or (ii) elects not to renew the IMA
at the end of its scheduled term, then at such time Client may terminate this
Agreement without penalty upon at least 60 days' prior written notice to
BlackRock.
9. Auditing. Client shall have the reasonable right to audit all BlackRock's
books and records directly pertaining to the performance of the Services, and to
obtain such copies of such books and records as its auditors may reasonably
request in connection with such audit, provided that Client gives reasonable
notice of the audit, and reviews the books and records during BlackRock's normal
business hours, and promptly reimburses BlackRock for any costs of photocopying
such books and records. BlackRock also shall provide to Client on request a copy
of its annual "SAS 70" report pertaining to the provision of the Services.
10. Applicable Law. This Agreement shall be construed pursuant to, and shall be
governed by, the laws of the state of New York without regard to its conflicts
of laws principles. The parties agree that all disputes arising under this
Agreement shall be resolved in the state or federal courts in New York County,
New York. Each party consents to jurisdiction and venue in such courts.
11. Assignment. Client may not assign this Agreement without BlackRock's written
consent, which shall not be unreasonably withheld. Subject to the foregoing,
this Agreement shall be for the benefit of and binding upon the parties, their
successors and permitted assigns.
12. Notices. Any notice given hereunder shall be in writing and delivered by
hand, facsimile, or by first class mail, addressed as follows:
IF TO CLIENT:
James Lillis
Chief Financial Officer
Anthracite Capital, Inc.
40 East 52nd Street
New York, New York 10022
Phone: (212) 810-3340
Fax: (212) 810-8765
WITH A COPY TO:
Robert P. Connolly
Managing Director & General Counsel
BlackRock, Inc.
40 East 52nd Street
New York, NY 10022
Phone: (212) 810-3743
Fax: (212) 810-3744
IF TO BLACKROCK: WITH A COPY TO:
Charles S. Hallac Robert P. Connolly
Managing Director Managing Director &
General Counsel
BlackRock Financial Management, Inc.
40 East 52nd Street
New York, NY 10022
Phone: (212) 810-5502 (212) 810-3743
Fax: (212) 810-3330 (212) 810-3744
Notices will be deemed given only upon actual receipt.
13. Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof. No understanding or
agreement relating hereto shall be valid unless in writing and signed by both
parties.
14. Waiver. Waiver by a party of any provision or any breach of any provision of
this Agreement shall not be deemed to be a waiver of such provision in any other
instance, or of any other breach of any provision hereof.
15. Severable. Any term or provision of this Agreement that is or may become
invalid or unenforceable in any applicable jurisdiction shall be, as to such
jurisdiction, deemed modified so as to allow enforceability of the parties'
original intent, as well as of the remaining terms and provisions of the
Agreement.
16. Schedules. References to this Agreement shall be deemed to include any
schedules, addenda, and exhibits hereto, taken as a whole with the Agreement.
17. Taxes. Client shall pay (or reimburse BlackRock) and be liable for taxes
arising out of this Agreement, including sales, use, or other taxes, except
taxes based on BlackRock's net income or corporate status. If Client obtains an
exemption from an applicable tax authority, upon receipt of a copy of the tax
exemption letter or number from Client, BlackRock will no longer collect the
taxes to which the exemption applies.
18. Construction. Any conflict between the body of this Agreement and the
Schedules or attachments hereto that are expressly referenced herein shall be
resolved in favor of such Schedules or attachments.
19. Survival. Sections 5, 6, 10, and any other provision that by its terms
survives termination, shall survive the expiration or earlier termination of
this Agreement.
20. Cooperation. The parties recognize that successful delivery of the Services
will require mutual cooperation, communication, feedback, and interaction,
including action required hereunder or reasonably requested by the other party
to enable it to accomplish its obligations
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and responsibilities hereunder. Both parties agree to perform the foregoing
responsibilities in good faith and in a professional manner.
21. Counterparts. This Agreement may be executed in counterparts, each of which
shall be an original, but all of which together shall constitute one agreement.
22. Independent Contractor. BlackRock is not an agent or employee of Client. The
manner of BlackRock's performance of the Services shall be in its sole
discretion, subject to the requirement that BlackRock shall at all times comply
with applicable law and its obligations hereunder. Client has no right or
authority to control the manner or means by which the Services are rendered.
BlackRock may hire third parties to perform some or all of its responsibilities
under this Agreement. No such subcontracting shall relieve BlackRock of its
obligations under this Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the Effective Date.
ANTHRACITE CAPITAL, INC. BLACKROCK FINANCIAL MANAGEMENT, INC.
By: /s/ James Lillis By: /s/ Charles Hallac
--------------------------------- ------------------------------------
Name: James Lillis Name: Charles Hallac
Title: Chief Financial Officer Title: Managing Director
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SCHEDULE A
[INVESTMENT ACCOUNTING SERVICES]
SCHEDULE B
[INVESTMENT ACCOUNTING FEE SCHEDULE]
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