Exhibit 10.1
RISK ANALYTICS SERVICES AGREEMENT
This RISK ANALYTICS SERVICES AGREEMENT (the "Agreement") is made as of the 1st
day of April, 2004 ("Effective Date") between BlackRock Financial Management,
Inc. ("BlackRock") and Sunset Financial Resources, Inc. ("Client"). WHEREAS,
Client wishes to engage BlackRock to provide risk measurement reporting and
analytical calculation services for Client's market risk management group; NOW,
THEREFORE, the parties agree as follows:
1. Scope and Use of Services. (a) BlackRock will provide Client with certain
risk measurement reports as set forth on Schedule A (each, a "Report"; together,
the "Reports Package"). Reports will be made available to Client on a website
("Client Site") that will be created and maintained by BlackRock for
password-protected access via the internet by certain Client personnel ("Client
Users," as defined in Schedule A). The Reports Package will be produced by
BlackRock using the same quality control procedures used for its other clients
of similar services. Client acknowledges that the creation of these Reports will
be dependent on portfolio and securities data that Client and/or its agents
shall provide in a format specified by BlackRock ("Client Data," as defined in
Schedule A).
(b) BlackRock also will provide Client with access to BlackRock's "AnSer"
analytical calculator via the internet, as described in Schedule A.
The "Services" shall consist of provision of the Reports Package and AnSer.
(c) BlackRock will provide Client with improvements in the Services as and when
it makes such improvements generally available to its clients. Client also may
request new or additional Reports from BlackRock for an additional fee, as the
parties may agree.
(d) "Third Party Data" means any data provided by BlackRock that are not
proprietary to BlackRock and are listed in Schedule B. Certain Third Party Data
are required to use the Services. Use of Third Party Data is subject to certain
additional contract and fee terms with the provider of such data, as outlined in
Schedule B.
(e) Client will provide the hardware, software, and internet connectivity
necessary for Client Users to access and use the Reports and AnSer. Current
requirements are set forth in Schedule C. All use of the Services will be
subject to the limitations set forth in this Agreement (and Schedule A),
including limitations on the number and identity of Client Users and limitations
applicable to Third Party Data (see Schedule B).
(f) Use of the Services shall be for Client's internal business purposes only.
Only the Client Users specified in Schedule A shall be permitted to access the
Services, and in each case only those Services for which they are authorized
Client Users. Client shall not (i) sell, lease, sublicense, copy, or provide
AnSer, or any information produced, directly or indirectly, thereby, to any
third party; (ii) provide Reports to any third party, except as expressly
permitted in this Agreement; or (iii) reverse engineer or otherwise use the
Services in any way to develop, test, enhance, or calibrate, on behalf of itself
or for any other party, any system or services that are similar to any
component(s) of the Services. Notwithstanding the foregoing Client shall be
permitted to provide limited AnSer analytical results and excerpts from Reports
(y) to its customers and prospective customers, so long as the provision of such
materials is not for a fee and is only an incidental component of the service
provided by Client to such customers or prospective customers, and (z) to its
auditors and regulators as required by law, rule, or practice. At BlackRock's
request, Client shall provide BlackRock indicative copies of its materials that
include Report excerpts and/or derived AnSer analytical results and are provided
to its customers.
(g) Client acknowledges that not all securities in its portfolios may lend
themselves to explicit analytically derived risk measures and that BlackRock may
not have procedures or methods appropriate for risk analysis of certain types of
securities. BlackRock will consult with Client's designated representative in
such cases to determine the appropriate methodology for analysis of these
securities for the Reports Package.
(h) BlackRock will provide the Reports Package to Client on the schedule set
forth in Schedule A. The timely production of each Report will depend on the
timely receipt of complete Client Data. AnSer will be available on the schedule
set forth in Schedule A.
(i) BlackRock shall provide technical support to Client in its use of the
Services as set forth in Schedule A.
2. Representations by Client. Client represents and warrants that (a) 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, (b) this Agreement constitutes a valid and
binding obligation, and (c) Client has all rights necessary to provide the
Client Data to BlackRock for the uses set forth herein.
3. Representations by BlackRock. BlackRock represents and warrants that (a)
execution, delivery, and performance of this Agreement have been duly authorized
and shall not conflict with any obligation of BlackRock,
Page 1 of 4
whether arising by contract, operation of law, or otherwise, (b) this Agreement
constitutes a valid and binding obligation, and (c) BlackRock has all rights
necessary to provide the Services contemplated herein. No other warranties are
provided, express or implied.
4. Risk Considerations. Client understands that risk measurement analyses and
calculation tools rely on certain assumptions and judgments, such as with
respect to movement in and volatility of interest rates and spreads, and
relative risks and the relationship between risk factors (such as the
relationship of mortgage prepayments to interest rates). These analyses, models,
and methodologies are generally based on observations of past market behavior
that may not hold true in the future. Such assumptions may not cover all aspects
of, or risks inherent in, Client's portfolios and calculation scenarios. Client
understands that the relevant analyses are also dependent on the integrity of
the security master data, and the validity of the pricing data, provided by
Client (as part of the Client Data), as well as economic data used in the
analyses. BlackRock will use its best judgment and practices to model the
portfolios and provide analytic tools, using the Client Data, Third Party Data,
and other available sources. For portfolios for which Client provides the
securities indicative data (see Section 1(a), above), BlackRock will depend
solely on Client Data for its analyses. BlackRock's analyses performed to create
the Reports are based on information BlackRock deems to be reliable, but
BlackRock in no case guarantees their accuracy or completeness. Client
acknowledges that significant professional disagreement exists regarding the
accuracy and validity of these types of analyses and methodologies, and that
there is no assurance that the analyses and methodologies used by BlackRock or
provided by BlackRock are or will be appropriate for Client or its portfolios.
Client acknowledges and agrees that (i) BlackRock's sole responsibility in
connection with this Agreement is to provide the Services to aid Client's
analysis of its portfolios, (ii) BlackRock is not serving as an investment
advisor, or making any recommendations or soliciting any action based on its
risk measurement analyses or provision of analytic tools, and (iii) Client will
be solely responsible for any judgments as to valuation of or purchase or sale
of its portfolio securities. Accordingly, BlackRock will not be responsible or
have any liability for any actions of or conclusions drawn by Client with
respect to any matter, whether or not such conclusions are based to any extent
on BlackRock's Services.
5. Fees. Client shall pay BlackRock fees for the Services to be calculated and
payable as set forth in Schedule A (the "Fees"). If the composition of Client's
portfolios substantially changes after the Effective Date, 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. The changes in Fees required
for additional Client Users of AnSer shall be as set forth in Schedule A.
6. 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,
know-how, financial models, model documentation, 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 and use of industry standard
security measures, neither party can guarantee to the other the security or
integrity of information accessible through the internet against improper or
unauthorized access.
(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, or
(iv) independently developed by a party without reference to the other party's
Confidential Information. (v) If any disclosure is compelled by a court or other
competent authority, the compelled party shall make reasonable efforts to allow
the disclosing party oppose and/or limit such disclosure. Disclosures described
in (v) shall not be deemed a violation of this Section 6.
(c) Client may provide to BlackRock suggestions, comments, or other feedback
("Feedback") with respect to Confidential Information and/or the Services.
Client agrees that all Feedback is and shall be given entirely voluntarily.
Except pursuant to a subsequent written agreement between the parties, BlackRock
shall be free to use, disclose, reproduce, license, or otherwise distribute and
exploit Feedback provided to it, without obligation or restriction of any kind
on account of intellectual property rights or otherwise.
(d) 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.
Page 2 of 4
7. Limitations on Liability; Indemnity. (a) Except with respect to indemnified
claims (as set forth below in subsection (b)(i)), in no case shall (i)
BlackRock's liability, in the aggregate, exceed the fees payable by Client to
BlackRock during the twelve-month period immediately preceding the event giving
rise to the liability or (ii) BlackRock be liable for any incidental,
consequential, or indirect damages.
(b) (i) BlackRock shall defend and indemnify Client against all losses, damages,
expenses (including reasonable attorney's fees), and claims ("Losses") arising
out of BlackRock's breach of its obligations under Sections 3(c) and 6 and its
material breach of any other obligations hereunder; and (ii) Client shall defend
and indemnify BlackRock against all Losses arising out of Client's breach of its
obligations under Sections 1(f), 2(c), and 6 and its material breach of any
other obligations hereunder.
8. Term. The initial term of this Agreement will begin on the Effective Date and
will expire on the 36-month anniversary of the availability to Client of the
first Reports Package. Thereafter, this Agreement will renew for 12-month terms
unless either party provides written notice to the other party of its desire to
avoid automatic renewal at least 90 days in advance.
9. Applicable Law. (a) This Agreement 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. The prevailing party in any dispute
arising under this Agreement shall be entitled to payment of its reasonable
attorney's fees by the other party.
(b) Each party acknowledges that certain breaches by it of its obligations
hereunder (such as under Sections 1(e) and 6) may cause irreparable harm to the
other party, and that the aggrieved party shall be entitled in any such case to
seek injunctive or similar relief without the posting of any bond or security.
10. 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.
11. 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: Xxxxx Boston
Chief Investment Officer
00000 Xxxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to BlackRock: With a copy to:
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxx
Managing Director Managing Director &
General Counsel
BlackRock Financial Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000 (000) 000-0000
Fax: (000) 000-0000 (000) 000-0000
Notices will be deemed given only upon actual receipt.
12. Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof. No understanding or
modification relating hereto shall be valid unless in writing and signed by both
parties.
13. 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.
14. Non-Exclusive Arrangement. Client agrees that BlackRock shall not be
restricted from furnishing services similar to the Services, or any other
investment management, risk measurement, or advisory services, to others. Client
acknowledges that BlackRock, its affiliates, and any officer, director,
stockholder, employee, or any member of their families, may have an interest in
securities with respect to which Services are performed under
Page 3 of 4
this Agreement. If conflicts of interest arise with respect to BlackRock's
duties under this Agreement, BlackRock agrees to perform its duties to Client in
good faith and shall deal fairly with Client.
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 (and be liable for) BlackRock for taxes
arising out of this Agreement, including sales, use, or other taxes (except
taxes based on BlackRock's net income or corporate status).
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 6, 7, 9, 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 and responsibilities hereunder. Both
parties agree to perform the foregoing responsibilities in good faith and in a
professional manner that reflects the sophisticated nature of the Services to be
provided.
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 an independent contractor and is not an
agent or employee of Client. BlackRock has no authority to bind Client by
contract or otherwise without Client's prior written authorization. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
SUNSET FINANCIAL RESOURCES, INC. BLACKROCK FINANCIAL MANAGEMENT, INC.
By: /s/ Xxxxx L Boston By: /s/ Xxxxxxx Xxxxxx
------------------------------- -------------------------------
Name: Xxxxx L Boston Name: Xxxxxxx Xxxxxx
Title: Vice Chairman - CIO Title: Managing Director
Page 4 of 4
