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EXHIBIT 10.30
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT, dated as of July 1, 2001, (this
"Agreement"), is made by and between The Advisory Board Company, a Maryland
corporation ("ABC") and DGB Enterprises Inc, a Delaware corporation ("DGB").
RECITALS
WHEREAS, ABC and DGB are parties to Administrative Services Agreements,
dated January 1, 2000 (the "Original Agreements");
WHEREAS, ABC and DGB desire to amend and restate in their entirety the
Original Agreements as a single agreement and, among other things, extend the
term of the Original Agreement through June 30, 2003;
WHEREAS, DGB desires to provide, and ABC desires to receive, certain
administrative and other corporate services from DGB, as hereinafter
specifically provided (collectively, the "DGB Administrative Services" and,
individually, a "DGB Administrative Service"), and the parties desire to set
forth herein the basis on which the DGB Administrative Services shall be
provided; and
WHEREAS, ABC desires to provide and DGB and certain related entities, as
from time to time agreed by the parties, which are owned or controlled by DGB or
its principal stockholder, desire to receive, certain administrative and other
corporate services from ABC, as hereinafter specifically provided (collectively,
the "ABC Administrative Services" and individually, an "ABC Administrative
Service"), and the parties desire to set forth herein the basis on which the ABC
Administrative Services shall be provided.
NOW, THEREFORE, in consideration of the foregoing and other
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Administrative Services. The DGB Administrative Services and the
ABC Administrative Services shall collectively be referred to herein as the
"Administrative Services." The specific Administrative Services to be provided
by DGB and ABC are comprised of the services more particularly set forth in
Attachment 1 hereto.
2. Term. Except with respect to Sections 10 through 17, which shall
survive indefinitely, the term of this Agreement shall be two (2) years
commencing on July 1, 2001 (the "Term"). During the Term, the Administrative
Services shall be provided only as specified in Attachment 1 hereto, unless
otherwise agreed to by the parties. Each party shall have the right to terminate
(a "Termination") any or all Administrative Services being provided to that
party upon sixty (60) days prior written notice to the other party. Termination
of one or more Administrative Services by a party shall not effect the other
party's obligation to furnish all other Administrative Services for the
remainder of the Term.
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3. Cost. Unless otherwise expressly agreed in writing by a duly
authorized officers of DGB and ABC, the Administrative Services shall be
provided in consideration for payment of the administrative fees set forth in
Attachment 1 hereto.
4. Delegation. Each party may retain the services of such third
parties, either by oral or written contract, as such party may, from time to
time, deem necessary or appropriate to facilitate the expeditious discharge of
its responsibilities to provide Administrative Services hereunder.
5. Independence. All employees and representatives of a party
providing Administrative Services will be deemed for purposes of all
compensation and employee benefits to be employees or representatives of such
party and not employees or representatives of the party receiving the
Administrative Services. In performing the Administrative Services, employees or
representatives of the party providing the Administrative Services will be under
the direction, control and supervision of such party (and not the party
receiving the Administrative Services) and such party will have the sole right
to exercise all authority with respect to the employment (including termination
of employment), assignment and compensation of such employees and
representatives. The party providing the Administrative Services shall be solely
responsible for the payment of all payroll and withholding taxes relating to its
employees for the Administrative Services it provides during the Term except, in
the event of a Termination the party making such Termination shall have sole
responsibility for any costs incurred by the party providing the terminated
Administrative Services related to the reduction or reassignment of its work
force in connection with the Termination.
6. Impracticability. Neither party shall be required to provide any
Administrative Service to the extent the performance or the provision of such
Administrative Services becomes impracticable as a result of a cause or causes
outside of the reasonable control of such party, or to the extent performance of
such Administrative Service would require such party to violate applicable laws,
rules or regulations or result in the breach of any license, permit or
applicable contract.
7. Additional Resources. In providing the Administrative Services,
neither party shall be obligated to: (i) hire any additional employees, (ii)
maintain the employment of any specific employee, or (iii) purchase, lease or
license any additional real property, equipment or software.
8. Force Majeure. The obligations of the parties under this
Agreement are subject to conditions of force majeure, including an act of God,
strike or walkout or other labor dispute, act of a public enemy, war,
revolution, riot, fire, storm, flood, earthquake, embargo and any other cause
which is not reasonably within the control of the party affected thereby.
9. Nondisclosure. In the event that, during the Term and in
connection with a party's performance of its obligations hereunder, either party
shall receive information concerning the other party hereto which the receiving
party knows, or has reason to believe, is confidential or proprietary to the
party to whom such information relates, the party receiving such information
shall take all reasonable steps to (a) protect and hold such information in
confidence and prevent its disclosure to third parties unless such third parties
are under a duty of confidentiality to the
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party to which such information relates; and (b) restrict its use to those
purposes consented to in writing by the party to whom such information relates;
provided, however, that the party receiving such information shall not be
required to protect or hold in confidence any information or data which (i) is
or becomes available to the public without the fault of the receiving party,
(ii) is independently developed by the receiving party, (iii) is disclosed to
the receiving party by a third party known to the receiving party not to be
under any duty of confidentiality to the party to whom such information related
with respect to such information or (iv) except as may otherwise be required by
law.
10. Limitation on Liability. Each party's liability to the other
party in connection with this Agreement and the Administrative Services to be
provided hereunder shall be limited to actual damages arising from such party's
gross negligence or willful misconduct in the performance of its duties and
responsibilities hereunder; provided, however, that, in no event shall such
party be liable for any incidental or consequential damages.
11. Indemnity.
(a) DGB agrees to defend, indemnify and hold ABC and its
officers, directors, employees and agents harmless from and against all
liabilities, losses, claims, damages and expenses of any nature,
including reasonable attorneys' fees, that are reasonably incurred by
ABC arising out of the performance of the Administrative Services
hereunder, except where such liability, loss, claim, damage or expense
shall have been caused by ABC's gross negligence or willful misconduct
in the performance of its duties and responsibilities hereunder.
(b) ABC agrees to defend, indemnify and hold DGB and its
officers, directors, employees and agents harmless from and against all
liabilities, losses, claims, damages and expenses of any nature,
including reasonable attorneys' fees, that are reasonably incurred by
DGB arising out of the performance of the Administrative Services
hereunder, except where such liability, loss, claim, damage or expense
shall have been caused by DGB's gross negligence or willful misconduct
in the performance of its duties and responsibilities hereunder.
12. Mutual Cooperation. DGB and ABC will provide each other with
information and assistance reasonably necessary to investigate, defend or
prosecute any claims, suits, charges, including but not limited to equal
employment opportunity, workers compensation, insurance and similar claims
brought by or against DGB or ABC relating to either of their businesses. This
provision shall survive termination of this Agreement.
13. Third Party Rights. Nothing in this Agreement, express or
implied, is intended to confer upon any person (including, without limitation,
employees), other than the parties hereto and their respective successors and
assigns, any rights or remedies of any nature whatsoever under or by reason of
this Agreement.
14. Relationship of Parties. Nothing in this Agreement shall be
deemed or construed by the parties or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
parties, it being understood and agreed that no provision contained
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herein, and no act of the parties, shall be deemed to create any relationship
between the parties other than the relationship of independent contractor nor be
deemed to vest any rights, interest of claims in any third parties.
15. Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties
hereto, provided that this Agreement may not be assigned by either of the
parties hereto without prior written consent of the other.
16. Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered by hand or mailed, postage prepaid
or by certified or registered mail, and addressed to the applicable party as
indicated below:
If ABC:
Xxxxx Xxxxxxxxxx
The Advisory Board Company
000 Xxx Xxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
If DGB:
Xxxxxxx X. X'Xxxxx
DGB Enterprises Inc.
000 Xxx Xxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
17. Governing Law. The validity, enforceability and performance of
this Agreement shall be governed by and construed in accordance with the laws of
the State of Maryland (excluding its choice of law rules).
18. Entire Agreement. The parties intend that the terms of this
Agreement, including the attached schedules, shall be the final expression of
their agreement with respect to the subject matter hereof and may not be
contradicted by evidence of any prior or contemporaneous agreement. The parties
further intend that this Agreement shall constitute the complete and exclusive
statement of its terms and that no extrinsic evidence whatsoever may be
introduced in any judicial, administrative or other legal proceedings involving
this Agreement.
19. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
20. Headings. The headings used in this Agreement are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of any provision of this Agreement.
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21. Amendments and Waivers. This Agreement may not be amended except
upon the written consent of all of the parties. By an instrument in writing, any
party may waive compliance by any other party with any term or provision of this
Agreement that such other party was or is obligated to comply with or perform,
provided, however, that such waiver shall not operate as a waiver of, or
estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder shall
operate as waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, or power provided herein or by law
or in equity. The waiver by any party of the time for performance of any act or
condition hereunder does not constitute a waiver of the act or condition itself.
22. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated, unless specifically provided otherwise in this
Agreement (including all exhibits, attachments and schedules hereto), each party
shall bear and pay all expenses incurred by it or on its behalf in connection
with the preparation of this Agreement and consummation of the transactions
described herein.
23. Severability. If any provision of this Agreement, or the
application thereof to any person, place or circumstance, shall be held by a
court of competent jurisdiction to be void, invalid or unenforceable, the
remainder of this Agreement and such provisions as applied to other persons,
places or circumstances shall remain in full force and effect.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
THE ADVISORY BOARD COMPANY
a Maryland corporation
By:
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Name:
Title:
DGB ENTERPRISES, INC.
A Delaware corporation
By:
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Name:
Title:
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