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EXHIBIT 10.18(a)
AMENDMENT NO. 1 TO SUBLEASE AND
SUPPORT SERVICES AGREEMENT
AGREEMENT, dated as of July 1, 1999 between Xxxxxxxxxxx Financial Services,
Inc., a Delaware corporation ("RFS"), and The Xxxxxxxxxxx Trust Company, a trust
company and commercial bank organized under the laws of the Commonwealth of
Pennsylvania ("RTC"). Capitalized terms used but not otherwise defined in this
Agreement shall have the meanings ascribed to them in the Sublease (as defined
below) or the Support Services Agreement (as defined below), as the case may be.
WHEREAS, RFS and RTC have entered into a Sublease, dated as of August 31, 1997
(the "Sublease"), and a Support Services Agreement, dated as of August 31, 1997
(the "Support Services Agreement");
WHEREAS, pursuant to the Sublease, since August 31, 1997, RTC has subleased from
RFS certain office space leased by RFS at Xxx Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxx;
WHEREAS, pursuant to the Support Services Agreement, since August 31, 1997, RFS
has made available to RTC certain support services used by RTC in the operation
of its business; and
WHEREAS, RTC has moved its business operations to new premises in Radnor
Corporate Center as a result of its desire to expand, RFS desires to utilize the
space that RTC has vacated, and RFS and RTC desire to amend the terms of the
Sublease and the Support Services Agreement in connection therewith;
NOW THEREFORE, in consideration of the foregoing recitals, the mutual promises
and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, RFS
and RTC hereby agree as follows:
1. Sublease. The Sublease shall terminate and be of no further force or effect
(except as provided below with respect to Section 11 of the Sublease) as
of May 17, 1999 (the "Sublease Termination Date"). RFS shall have no
obligation to make any portion of the Premises available to RTC for its
use, and RTC shall have no obligation to pay to RFS any Rent in respect of
any period, after the Sublease Termination Date. This Agreement shall not
affect in any way any rights that RFS or RTC may have against the other
under the Sublease in respect of any actions or events occurring prior to
the Sublease Termination Date or pursuant to
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the indemnification provisions of Section 11 of the Sublease. RTC will pay
Rent to RFS in respect of the period ending on the Sublease Termination
Date (on a pro-rated basis) in accordance with the past practice of the
parties. RFS shall notify the Landlord of the termination of the
Sublease promptly following the Sublease Termination Date.
2. Support Services Agreement. From and after the Sublease Termination Date,
Sections 1, 4 and 14 of the Support Services Agreement shall be amended in
respect of the services to be made available by RFS to RTC thereunder, the
fees to be paid by RTC to RFS thereunder, and the term of such agreement,
and replaced in their entirety by the provisions set forth below in
Paragraphs 3 through 6. The Support Services Agreement, as amended by this
Agreement, is referred to herein as the "Amended Support Services
Agreement."
3. Provided Services. Notwithstanding anything to the contrary contained in
the Support Services Agreement, from and after the Sublease Termination
Date, RFS will make available to RTC only the support services set forth on
Schedule I hereto in accordance with the practices in effect on the date
hereof or as otherwise specifically set forth in Schedule 1. From and after
the Sublease Termination Date, RTC will have no obligation to make any
support services available to RFS.
4. Fees. Notwithstanding anything to the contrary contained in the Support
Services Agreement, in consideration of the services to be provided under
the Amended Support Services Agreement, RTC shall pay to the parent company
of RFS, The Xxxx Nuveen Company ("JNC"), or an affiliate designated by JNC,
in lieu of the Fixed Annual Fee set forth in the Support Services
Agreement, an amount equal to six million four hundred twenty-four thousand
two hundred twenty dollars ($6,424,220), which shall be payable in one
installment of one million one hundred fifty-six thousand eight hundred
twenty dollars ($1,156,820) on July 1, 1999 and in five equal quarterly
installments of one million fifty-three thousand four hundred eighty
dollars ($1,053,480) on the first business day of each calendar quarter,
beginning October 1, 1999 and ending October 2, 2000 in each case by wire
transfer of immediately available funds (the "Revised Fixed Fee"). The
Revised Fixed Fee shall be payable regardless of whether and to what extent
any RFS provided services are utilized by RTC hereunder during any calendar
quarter to which a Revised Fixed Fee payment relates. In consideration of
the services to be provided by RFS under this Agreement, RTC shall also pay
to RFS the fee or other charge set forth opposite each such provided
service on Schedule 1 in respect of RFS provided services actually provided
and received by RTC during a billing period hereunder, and each RFS
provided service will be invoiced to RTC in accordance with past practices.
5. Contiguous Office Space. The requirement to pay fees payable under the
Amended Support Services Agreement shall not be related in any way to the
Sublease or to the location of RTC's business operations in space
contiguous to that of RFS. RFS shall have no obligation to secure
contiguous office space for
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RTC in the event that RFS moves its business operations or acquires
additional office space.
6. Term. (a) Notwithstanding anything to the contrary contained in the Support
Services Agreement, the Amended Support Services Agreement shall terminate,
and RFS shall cease to be obligated to provide services, on the earlier of
(i) December 31, 2000, (ii) an RTC Default as described in paragraph (b)
below, and (iii) a material default by RFS hereunder, unless such default
has been cured by RFS to the reasonable satisfaction of RTC within 30 days
after receipt of written notice of default from RTC. In the event that the
Amended Support Services Agreement would otherwise terminate on December
31, 2000 in accordance with clause (i) of the preceding sentence, RTC shall
have the right to extend such date to December 31, 2001 by delivering
written notice of the desire to so extend to RFS no later than November 30,
2000, together with a payment of one hundred dollars for such extension.
Upon termination of the Amended Support Services Agreement all payment
obligations of RTC shall cease except for any accrued and unpaid
liabilities for the Revised Fixed Fee, for services previously rendered
and, if applicable, any payment described in paragraph (c) below.
(b) "RTC Default" means (i) a material default by RTC hereunder, unless
such default has been cured by RTC to the reasonable satisfaction of RFS
within 30 days after receipt of written notice of such default, (ii) a
majority of the outstanding capital stock of RTC ceases to be owned by
Xxxxxx X. Xxxxxxx, or a Permitted Transferee (as defined in the
Inter-Company Agreement among RTC, RFS, JNC and Xxxxxx X. Xxxxxxx) or (iii)
the sale, exchange, transfer or other disposition of any outstanding
capital stock of RTC to a competitor of JNC.
(c) In the event the Amended Support Services Agreement is terminated
pursuant to an RTC Default, RTC shall make payment within five business
days to JNC or an affiliate of JNC by wire transfer of immediately
available funds of an amount equal to the present value (applying a
discount rate equal to the then prevailing prime rate of interest announced
by Xxxxxx Guaranty Trust Company of New York) of the Revised Fixed Fee
amounts which have not been theretofore paid. In the event of the
termination of the Amended Support Services Agreement for any reason other
than (i) an RTC Default or (ii) so long as there has been no continuing RTC
Default and so long as RTC has not materially breached any of the
Transaction Documents that is continuing, RFS's willful breach of its
obligation under the Amended Support Services Agreement to provide
services, RTC shall continue to pay the Revised Fixed Fee.
7. Further Assurances. RFS and RTC agree to work together in good faith to
ensure a smooth transition of the RTC business into new office space and to
avoid confusion of customers or service providers relating to the
similarity of the RFS and RTC names. In particular, the parties will work
together and cooperate in connection with their respective mail room,
receptionist and record management
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personnel to take all necessary actions to insure a smooth transition in
separation of the office space and of the previously shared office
management functions. The parties also agree to work together to properly
separate all commingled files held on location or offsite.
8. No other Changes. Except as modified as set forth above, the provisions of
the Support Services Agreement shall remain in full force and effect. This
Agreement shall not affect in any way any of the terms of the agreements
entered into by RFS and RTC at the time of the acquisition of RFS by JNC or
subsequent thereto, other than the Sublease and the Support Services
Agreement.
IN WITNESS WHEREOF, the parties hereto, being duly authorized, have duly
executed and delivered this Agreement.
XXXXXXXXXXX FINANCIAL SERVICES, INC.
By:
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Name: Xxxx X. Berkshire
Title: Vice President
Date:
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THE XXXXXXXXXXX TRUST COMPANY
By:
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Name:
Title:
Date:
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THE XXXX NUVEEN COMPANY
By:
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Name: Xxxx X. Berkshire
Title: Senior Vice President
Date:
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