Exhibit 10(a)
AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT
This Amended and Restated Administrative Services Agreement (the "Agreement") is
made as of the 1st day of July, 2001, between State Bond and Mortgage Company,
L.L.C., a Maryland limited liability company ("Parent") and SBM Certificate
Company, a Maryland corporation (the "Company") which is registered as a face
amount certificate company under the Investment Company of 1940 (the "1940
Act").
WHEREAS, the Company and Parent entered into the initial Agreement dated as of
January 19, 2000.
WHEREAS, Company desires Parent to perform certain administrative and special
services (collectively, "services") for Company in its business operations and
desires further to make use in its day-to-day operations of certain property,
equipment and facilities (collectively, "facilities") of Parent and its
subsidiaries; and
WHEREAS, Parent and Company contemplate that the availability of services and
facilities will achieve certain operating efficiencies and improve services
provided by Company to its certificate holders; and
WHEREAS, Parent and Company wish to assure that all charges for services and the
use of facilities incurred hereunder are reasonable and in accordance with the
requirements of the 1940 Act, and Maryland corporate law; and
WHEREAS, Parent and Company wish to identify the services to be rendered to
Company by Parent and the facilities to be used by Company and to provide for
the fees to be paid by Company.
NOW, THEREFORE, in consideration of the premises and of the mutual promises set
forth herein, and intending to be legally bound hereby, Parent and Company agree
as follows:
1. USE OF FACILITIES. Subject to the tends, conditions, and limitations of this
Agreement, Parent agrees to make available to Company such of its facilities or
the facilities of its subsidiaries as may be reasonably necessary in the conduct
of Company's business operations, including, without limitation, data processing
equipment, office facilities (whether owned or leased) and communications
equipment.
(a) CAPACITY OF PERSONNEL AND STATUS OF FACILITIES. Whenever Parent utilizes its
personnel to perform services for Company pursuant to this Agreement, such
personnel shall at all times remain employees of Parent, and Parent shall alone
retain full liability for their compensation, employee benefits, payroll
deductions and legally required employer contributions and withholding tax
obligations. No facility of Parent or its subsidiaries used in performing
services for or subject to use by Company pursuant to this Agreement shall be
deemed to be transferred, assigned, conveyed or leased by performance or use.
The foregoing shall not preclude the Company from hiring its own employees, nor
shall it preclude the Company's employees from also being employees of Parent.
(b) EXERCISE OF JUDGEMENT IN RENDERING SERVICES. In providing any services
hereunder which require the exercise of judgment by Parent, Parent shall perform
such services in accordance with standards and guidelines established by the
Board of Directors of Company and communicated to Parent.
(c) CONTROL. The performance of services by Parent for Company pursuant to this
Agreement shall in no way impair the absolute control of the business and
operations of Company by its Board of Directors. Parent shall act hereunder so
as to assure the separate operating and corporate identity of Company.
2. SERVICES. Subject to the terms, conditions, and limitations of this
Agreement, Parent shall provide on behalf of Company the services set forth
below.
(a) CERTIFICATEHOLDER SERVICES. Parent shall service the face amount
certificates of Company.
(b) ACCOUNTING: TAX AND AUDITING. Parent shall provide all accounting services,
including the following: the processing and maintenance of the financial records
of Company, the preparation of financial statements and reports including Form
10-K Annual Reports, Form 10-Q Quarterly Reports, and any other reports required
by the Securities Exchange Act of 1934 or the 1940 Act, the preparation of tax
returns, and the preparation of additional financial reports used by Company in
the operations of its business. Parent shall also provide services in connection
with tax and auditing matters. Fees for professional services from outside
entities in connection with the tax and auditing matters shall be paid by the
Company and not the Parent.
(c) FUNCTIONAL SUPPORT SERVICES. Parent shall provide: (i) actuarial services,
and (ii) telecommunications services and electronic data processing services,
including, without limitation, software programming and documentation and
hardware utilization.
(d) PAYROLL FUNCTONS. Parent shall perform all payroll functions including, but
not limited to, the preparation of all payroll checks and withholding tax
reports.
(e) PERSONNEL FUNCTIONS. Parent will provide to Company all personnel functions;
provided, however, that Company may, from time to time and in its sole
discretion, employ persons in addition to, or in lieu of, Parent's personnel.
(f) OTHER SUPPORT SERVICES. Parent will provide other administrative support
services to Company as needed or required by Company.
3. CHARGES. Company agrees to pay to Parent for services and facilities provided
by Parent to Company pursuant to this Agreement the fees set forth on Appendix A
attached hereto, as such Appendix may be revised by the parties from time to
time. Notwithstanding any other provision herein, at no time may charges payable
by the Company cause it to have assets of less than the total of:
(i) the qualified investments that the Company is required to maintain with an
independent custodian pursuant to the 1940 Act; plus
(ii) the minimum capital required for the Company by the 1940 Act
4. PAYMENT. Parent shall submit to Company at the beginning of each calendar
month a written statement of the amount estimated to be owed by Company for
services and the use of facilities pursuant to this Agreement for that calendar
month, and Company shall pay to Parent within five (5) days following receipt of
such written statement the amount set forth in the statement. Within thirty (30)
days after the end of each calendar quarter, Parent will submit to Company a
detailed written statement of the charges due from Company to Parent in the
preceding calendar quarter, including charges not included in any previous
statements, based on the computation of fees set forth on Appendix A, and any
balance payable or to be refunded as shown in such statement shall be paid or
refunded within fifteen (15) days following receipt of such written statement by
Company.
5. ACCOUNTING RECORDS AND DOCUMENTS. Parent shall be responsible for maintaining
full and accurate accounts and records of all services rendered and facilities
used pursuant to this Agreement and such additional information as Company may
reasonably request for purposes of its internal bookkeeping and accounting
operations. Parent shall also maintain such accounts and records insofar as they
pertain to the computation of charges hereunder available at its principal
offices for audit, inspection and copying by Company and persons authorized by
it or any governmental agency having jurisdiction over Company during all
reasonable business hours.
6. OTHER RECORDS AND DOCUMENTS. All other books, records, and files established
and maintained by Parent by reason of its performance of its obligations under
this Agreement which, absent this Agreement, would have been held by Company,
shall be deemed the property of Company, and shall be subject to examination at
all times by Company and persons authorized by it or any governmental agency
having jurisdiction over Company, and the originals or copies thereof shall be
delivered to Company not less frequently than quarterly.
7. RIGHT TO CONTRACT WITH THIRD PARTIES. Nothing herein shall be deemed to grant
Parent an exclusive right to provide services to Company, and Company retains
the right to contract with any third party, affiliated or unaffiliated, for the
performance of services or for the use of facilities as are available to or have
been requested by Company pursuant to this Agreement. Nothing herein shall be
deemed to prohibit Parent from providing any or all of the services to be
provided to Company hereunder to other persons, whether or not affiliated with
Parent. In addition, Company shall have the right to solicit bids and contract
with any third party for the services to be provided hereunder, in which event
this Agreement may be terminated in accordance with Section 9 hereof. Further,
Parent has right to subcontract with any third party, affiliated or
unaffiliated, for services Parent is obligated to provide to Company pursuant to
this Agreement.
8. CONTACT PERSON(S). Company and Parent each shall appoint one or more
Individuals who shall serve as contact person(s) for the purpose of carrying out
this Agreement. Such contact person(s) shall be authorized to act on behalf of
their respective parties as to the matters pertaining to this Agreement.
Effective upon execution of this Agreement, the initial contact person( s) shall
be those set forth in Section 16 of this Agreement. Each party shall notify the
other, in writing, as to the name, address and telephone number of any
replacement for any such designated contact person or additional contact
persons.
9. TERMINATION AND MODIFICATION. This Agreement shall remain in effect until
terminated by either Parent or Company upon giving thirty (30) days or more
advance written notice. Upon termination, Parent shall promptly deliver to
Company all books and records that are, or are deemed by this Agreement to be,
the property of Company.
10. SETTLEMENT ON TERMINATION. No later than ninety (90) days after the
effective date of the termination of this Agreement, Parent shall deliver to
Company a detailed written statement for all charges incurred and not included
in any previous statement to the effective date of termination. The amount owed
or to be refunded hereunder shall be due and payable within thirty (30) days of
receipt of such statement.
11. INDEPENDENT CONTRACTOR. In rendering its services hereunder, Parent shall
act as an independent contractor, and any duties of Parent arising hereunder
shall be owed exclusively to Company.
12. FORCE MAJEURE. If any cause or condition shall occur beyond the control of
Parent which wholly or partially prevents the performance by Parent of its
obligations hereunder, including, without limitation, any act of God or the
public enemy, fire, explosion, flood, earthquake, war, riot, adverse weather
conditions, breakdowns in equipment or facilities, strike, slowdown, work
stoppage or other labor trouble or delays in receiving or failures to receive
any permits, licenses or approvals from any governmental authority, then Parent
shall be excused to the extent made necessary by such cause or condition and
during the continuance thereof and Parent shall incur no liability by reason of
its failure to perform the obligations so excused. Such cause or condition shall
not, however, relieve Company of the obligation to pay to Parent fees and
charges due to Parent for services rendered and expenses incurred hereunder
prior to such stoppage.
13. ASSIGNMENT. This Agreement and any rights pursuant hereto shall not be
assignable by either party hereto, except by operation of law. Except as and to
the extent specifically provided in this Agreement, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto, or their respective legal successors, any rights, remedies obligations
or liabilities, or to relieve any person other than the parties hereto, or their
respective legal successors, from any obligations or liabilities that would
otherwise be applicable. The representations, warranties, covenants and
agreements contained in this Agreement shall be binding upon, extend to and
inure to the benefit of the parties hereto, their, and each of their, successors
and assigns respectively.
14. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Maryland
applicable to contracts made and to be performed entirely within that State.
15. ARBITRATION. In the event of any irreconcilable dispute between the parties
in connection with this Agreement, the dispute shall be submitted to
arbitration. Either party may submit the dispute to arbitration by notifying the
other of its submission and naming its arbitrator. The other party shall name
its arbitrator within 30 days after receiving such notice. The arbitrators shall
choose an umpire through the nomination of three persons by each arbitrator, the
declination by each arbitrator of two of the nominees named by the other
arbitrator, and the drawing of lots to
choose between the two arbitrators within thirty days after the after and
umpire, if any, are chosen. The arbitrators and umpire shall be disinterested
investment company executives. The arbitrators are relieved from judicial
formalities and may refrain from following strict rules of evidence. The
decisions of the arbitrators and umpire, or the majority of them, shall be final
and binding upon the parties. Each party shall bear the expense of its own
arbitrator and one-half the other expenses of the arbitration proceedings. Any
arbitration shall take place in Chevy Chase, Maryland, unless otherwise mutually
agreed.
16. NOTICE. All notices, statements or requests provided for hereunder shall be
deemed to have been duly given when delivered by hand to an officer of the other
party, or when deposited with the U.S. Postal Service, as first class certified
or registered mail, postage prepaid, overnight courier services, telex or
telecopy, addressed
(a) if to Parent to:
State Bond & Mortgage Company, L.L.C.
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(b) if to Company to:
SBM Certificate Company
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or to such other persons or places as each party may from time to time designate
by written notice sent as aforesaid.
17. ENTIRE AGREEMENT. This Agreement, together with such amendments as may from
time to time be executed in writing by the parties, constitutes the entire
agreement and understanding between the parties in respect to the transactions
contemplated hereby and supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof.
18. INVALID PROVISIONS. If any provision of this Agreement is held to be illegal
invalid, or unenforceable under any present or future law, and if the rights or
obligations of Parent or Company under this Agreement will not be materially and
adversely affected thereby, (a) such provision will be fully severable; (b) this
Agreement will be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part hereof; (c) the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid, or unenforceable provision or by its
severance here from; and (d) in lieu of such illegal, invalid, or unenforceable
provision, there will be added automatically as a part of this
Agreement a legal, valid, and enforceable provision as similar in terms to such
illegal, invalid, or unenforceable provision as may be possible.
19. SECTION HEADINGS. Section headings contained herein are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
20. COUNTERPARTS. This Agreement may be executed in separate counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their respective officers duly authorized so to do, as of the date
and year first above written.
STATE BOND AND MORTGAGE COMPANY, L.L.C.
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President
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Vice President of Finance and Accounting
SBM CERTIFICATE COMPANY
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Chairman
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President
APPENDIX A SCHEDULE OF FEES
COMPUTATION OF FEES. The annual charge to the Company (the "Annual Charge") for
the services and facilities that Parent provides to it pursuant to the Agreement
shall be either one percent (1%) of Total Certificate Reserves (as hereinafter
defined), or an amount not to exceed two million five hundred thousand dollars
($2.5 million). The charge will be determined monthly by the Parent and Company
management. Total Certificate Reserves is defined as the arithmetic average of
the sum of certificate reserves for the current calendar year and the
immediately preceding calendar year as reported in the Form 10-K Annual Report
for the Company.