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EXHIBIT 10.17
SUPPORT SERVICES AGREEMENT
This Support Services Agreement (this "Agreement") is made as of
August 31, 1997 (the "Effective Date") by and 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").
WHEREAS, pursuant to a Stock Purchase Agreement dated as of July 14,
1997 (the "Stock Purchase Agreement"), among The Xxxx Nuveen Company, a
Delaware corporation ("JNC"), Xxxxxx X. Xxxxxxx, and RFS, JNC is acquiring from
Xxxxxx X. Xxxxxxx on the date hereof all of the capital stock of RFS; and
WHEREAS, RFS desires to provide to RTC, and RTC desires to receive
from RFS, certain services, as more fully described on Schedule 1 attached
hereto (the "RFS Provided Services"); and
WHEREAS, RTC desires to provide to RFS, and RFS desires to receive
from RTC, certain services, as more fully described on Schedule 2 attached
hereto (the "RTC Provided Services" and, together with the RFS Provided
Services, the "Services"); and
WHEREAS, RFS and RTC, as contemplated by Section 4.5 of the Stock
Purchase Agreement, desire to enter into this Agreement to confirm the terms
and conditions pursuant to which RFS will provide the Services.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
Services. (a) Subject to the terms of this Agreement, from and after
the Closing, RFS shall make the RFS Provided Services available to RTC in
accordance with the practices in effect as of the Closing or as otherwise
specifically set forth in Schedule 1 hereto. In consideration for the RFS
Provided Services listed on Schedule 1, RTC shall pay to RFS, JNC or an
affiliate of JNC each year for a period of ten years from the date hereof the
Fixed Annual Fee set forth on Schedule 3 attached hereto (together with
Schedule 1, the "RFS Provided Services Schedules"), payable in advance for the
first year of such period on the second business day following the date hereof
and thereafter in advance in equal quarterly installments on the first business
day following each December 31, March 31, June 30 and September 30, in each
case by wire transfer of immediately available funds, which Fixed Annual Fee in
light of the RFS's making available such RFS Provided Services shall be payable
regardless of whether and to what extent any RFS Provided Services are utilized
by RTC hereunder during the respective annual period to which such payment
relates, and the fee or other charge set forth opposite each such RFS Provided
Service on Schedule 1 (each such fee or charge a "Variable RFS Provided Service
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Fee") in respect of RFS Provided Services actually provided and received by RTC
during a billing period hereunder and each RFS Provided Service provided will
be invoiced to RTC in accordance with the billing provisions set forth in
Schedule 1 with respect to such RFS Provided Service. RTC shall give RFS
written notice of its intent to terminate any one or more of the RFS Provided
Services at least 30 days prior to the termination of the RFS Provided Service
unless Schedule 1 hereto provides for a different notice period, in which case
such different notice period shall apply to the applicable Service; provided,
however, that no such termination(s) shall relieve RTC of its obligation to pay
the Fixed Annual Fee to RFS, JNC or an affiliate of JNC as provided above and
provided further that notwithstanding anything to the contrary in this
Agreement, RTC shall not be obligated to continue to pay the Fixed Annual Fee
if (i) RFS terminates RTC's sublease of office space from RFS pursuant to the
Sublease dated the date hereof by and between RFS and RTC or any subsequent
sublease entered into pursuant to Section 1(c) (a "Sublease") or RTC is evicted
from such space (in any case other than as a result of RTC's default thereunder
or upon the Sublease's expiration at the end of the term thereof (without
acceleration of termination)), or (ii) RFS breaches the covenant set forth in
Section 1(c). RFS agrees and acknowledges that each of the RFS Provided
Services will be available for a period of at least ten years from the date
hereof and that if RTC has given RFS written notice of its intent to terminate
any of the RFS Provided Services pursuant to this Section 1(a), then RTC shall
have the right to resume at RTC's cost (including start up costs) any such RFS
Provided Service upon 30 days written notice to RFS, provided that such notice
is delivered prior to the tenth anniversary of the date hereof and provided
further that RFS shall have no obligation to provide such terminated service if
RFS no longer performs such service for itself or no longer maintains the
personnel, hardware or software necessary to perform such RFS Provided Service.
This Agreement shall continue in full force and effect with respect to any RFS
Provided Services not terminated by any such notices.
Subject to the terms of this Agreement, from and after the Closing,
RTC shall make the RTC Provided Services available to RFS in accordance with
the practices in effect as of the Closing or as otherwise specifically set
forth in Schedule 2 hereto. In consideration for the Services, RFS shall pay to
RTC the fee or other charge set forth opposite each such RTC Provided Service
on Schedule 2 (each such fee or charge a "Variable RTC Provided Service Fee"
and, together with the Variable RFS Provided Service Fee, the "Variable
Services Fees") in respect of RTC Provided Services actually provided and
received by RFS during a billing period hereunder and each RTC Provided Service
provided will be invoiced to RFS in accordance with the billing provisions set
forth in Schedule 2 with respect to such Service. RFS shall give RTC written
notice of its intent to terminate any one or more of the RTC Provided Services
at least 30 days prior to the termination of the RTC Provided Service unless
Schedule 2 hereto provides for a different notice period, in which case such
different notice period shall apply to the applicable RTC Provided Service. RTC
agrees and acknowledges that each of the RTC Provided Services will be
available for a period of at least ten years from the date hereof and that if
RFS has given RTC written notice of its intent to terminate any of the RTC
Provided Services pursuant to this Section 1(b), then RFS shall have the right
to resume at RFS's cost (including Start Up Costs) any such RTC Provided
Service upon 30 days written notice to RTC, provided that such notice is
delivered prior to the tenth anniversary of the date of and provided further
that RTC shall have no obligation to provide such terminated service if RTC no
longer performs such service for
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itself no longer maintains the personnel, hardware or software necessary to
perform such RTC Provided Service. This Agreement shall continue in full force
and effect with respect to any RTC Provided Services not terminated by any such
notices.
During the period ending on the tenth anniversary of the date hereof
RFS shall secure for RTC's benefit and shall sublease to (or shall arrange for
a lease for) RTC office space which is contiguous to office space leased,
owned, or otherwise occupied by RFS following termination of the Sublease dated
the date hereof by and between RFS and RTC. Such sublet office space shall,
unless otherwise agreed by RTC, contain the same square footage of office space
and storage space as that covered by the Sublease at the time of its expiration
and shall be of quality and appearance comparable to the contiguous office
space and storage space occupied by RFS. Such sublet shall be evidenced by a
sublease containing the terms of the Sublease between RFS and RTC dated the
date hereof, modified, mutatis mutandis, to reflect the terms of RFS's master
lease. RTC's rent and associated expenses for such space shall be a percentage
of RFS's rent and associated expenses based on the percentage of space sublet
to RTC in relation to the overall space leased by RFS. RFS covenants and agrees
that prior to leasing any office space it shall obtain from its new landlord
all necessary consents to the sublease to RTC herein described.
"Providing Party" shall mean (i) with respect to the RFS Provided
Services, RFS, and (ii) with respect to the RTC Provided Services, RTC.
"Receiving Party" shall mean (i) with respect to the RFS Provided Services,
RTC, and (ii) with respect to the RTC Provided Services, RFS.
Liability; Indemnification. Providing Party shall have no liability to
Receiving Party with respect to its furnishing any of the Services hereunder
except for its willful misconduct or gross negligence. In providing the
Services, Providing Party shall not be obligated to (i) hire any additional
employees; (ii) maintain the employment of any specific employee; (iii)
purchase, lease or license any additional equipment or software; or (iv) pay
any costs related to the transfer or conversion of Receiving Party's data to
Receiving Party or any alternate supplier of administrative services. The sole
remedy of Receiving Party in the event data owned by it is lost or damaged in
any way during processing by a third party data processor is the refund to it
of any Variable Service Fees paid for the processing of the damaged data and
any damages available from such third party data processor. Providing Party
agrees to exercise reasonable diligence to correct errors or deficiencies in
the Services. Providing Party shall not be liable to any third party in any way
for any obligation or commitment pursuant to this Agreement or for any act or
omission, and Receiving Party shall be solely liable and responsible for any
and all claims, liabilities, obligations, losses, costs, expenses, litigation,
proceedings, charges, allegations, demands, damages or judgments of any kind or
nature whatsoever ("Liabilities") related to, arising from, asserted against or
associated with Providing Party furnishing or failing to furnish to Receiving
Party any of the Services described herein. Upon the termination of any of the
Services, Receiving Party shall be obligated to return to Providing Party, as
soon as practicable, any equipment or other property of Providing Party
relating to the Services which is owned or leased by Providing Party and is or
was in Receiving Party's possession or control. Effective as of the date of
this Agreement, Receiving Party shall indemnify and hold Providing
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Party and its affiliates and their respective directors, shareholders,
officers, employees, agents, consultants, representatives, successors,
transferees and assigns harmless from and against any and all Liabilities
(including, without limitation, reasonable fees and expenses of counsel) of
whatever kind and nature related to, arising from, asserted against or
associated with Providing Party furnishing or failing to furnish the Services
provided for in this Agreement, other than Liabilities arising out of the
willful misconduct or gross negligence of Providing Party or its affiliates or
their respective directors, shareholders, officers, employees, agents,
consultants, representatives, successors, transferees or assigns.
Claims. Receiving Party's receipt of any Service performed hereunder
shall be an unqualified acceptance of, and a waiver by it of any and all claims
with respect to, such Service unless it gives Providing Party notice of claim
within 60 days after such receipt. No claim by Receiving Party against
Providing Party of any kind, whether as to service performed or for delayed
performance or non-performance, shall be greater in amount than the Variable
Service Fee paid, or payable, by Receiving Party for the Service in respect of
which such claim is made; and in no event will Providing Party be liable to
Receiving Party for any incidental or consequential damages, other than as
caused by or resulting from negligence or breach of obligations hereunder.
Additional Services. (a) If Receiving Party, and if RFS is Receiving
Party then also JNC, wants Providing Party to provide any service other than
the Services provided for in Schedule 1 hereto, Receiving Party shall notify
Providing Party in writing, and within 30 days following the giving of such
notice Providing Party, and if RFS is Providing Party then also JNC, shall
decide, in its sole discretion, whether to provide such service. If Providing
Party agrees to provide such additional service, Receiving Party shall be
invoiced for such service in accordance with billing practices reasonably
determined by mutual agreements. Notwithstanding the foregoing, any service
that is being provided by either party to the other as of the date hereof which
is not listed on Schedule 1, shall be provided by the Providing Party to the
Receiving Party upon the Receiving Party's written request to the Providing
Party within one year from the date hereof at the cost (including start up
costs) of providing such service; provided that the Providing Party shall have
no obligation to provide such service if the Providing Party no longer performs
such service for itself or no longer maintains the personnel, hardware or
software necessary to perform such service. The provision by Providing Party of
any such additional service shall be subject to all other provisions of this
Agreement and shall be deemed a Service as if such additional service had
originally been part of Schedule 1 or Schedule 2 to this Agreement, as
applicable.
Confidentiality. Any and all information which is not generally known
to the public which is exchanged between the parties in connection with this
Agreement, whether of a technical or business nature, shall be considered to be
confidential. The parties agree that confidential information shall not be
disclosed to any third party or parties without the written consent of the
other party. Each party shall take reasonable measures to protect against
nondisclosure of confidential information by its officers and employees.
Confidential information shall not include any information (i) which is or
becomes part of the public domain, (ii) which is obtained from third parties
who are not bound by confidentiality obligations or
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(iii) which is required to be disclosed by law, regulation, legal process or
the rules of any state or federal regulatory agency or the New York Stock
Exchange. The provisions of this section shall survive the termination of this
Agreement.
Assignment. Notwithstanding anything to the contrary in this
Agreement, this Agreement shall not be assignable by either party hereto to any
other person, firm or entity without the prior written consent of the other
party; provided, however, that this Agreement in its entirety, or any portion
of the rights and obligations established hereunder, may be assigned by either
party hereto to one of its directly or indirectly wholly owned subsidiaries
without the written consent of the other party, provided further that (other
than those services indicated on Schedule 1 or 2 as non-transferable) RFS may
assign either in whole or in part the rights and obligations established under
this Agreement to JNC or a direct or indirect subsidiary of JNC so long as the
assignment of such service is approved by the President of RFS in coordination
with JNC and, in the aggregate, the level and quality of service and cost of
service of such service provided to RTC remains at least comparable to the
level of service and cost of service provided by RFS to RTC. Notwithstanding
anything to the contrary herein, the Providing Party may select a new provider
of products or services (except for those services specifically indicated on
Schedule 1 or 2) so long as the assignment to such service is approved by the
President of RFS in coordination with JNC and such new provider provides, in
the aggregate, a quality of product and level and quality of service and cost
of product or service no less favorable than those provided by the existing
provider. Except as expressly provided herein, nothing herein shall create or
be deemed to create any rights as a third-party beneficiary in any person or
entity not a party to this Agreement.
Waiver, Amendment or Modification. No waiver, amendment or
modification of this Agreement shall be valid unless in writing and duly
executed by the party to be charged therewith.
Entire Agreement. This Agreement, the Schedules hereto, the Stock
Purchase Agreement and the other Transaction Agreements (as defined in the
Stock Purchase Agreement) constitute the entire agreement of the parties
concerning the subject matter hereof and supersedes all previous agreements
between the parties, whether written or oral, with respect to such subject
matter.
Governing Law. Despite any different result required by any conflicts
of law provisions, this Agreement shall be governed by the laws of the State of
Delaware.
Notices. All notices, requests, demands, waivers and other
communications (hereafter "notices") required or permitted to be given pursuant
to this Agreement shall be in writing and shall be deemed to have been duly
given (i) at the time of delivery, if delivered by hand, (ii) on the date of
transmission, if sent by facsimile, telegram or other standard form of
telecommunications or (iii) three business days after mailing, if mailed
registered or certified first-class mail, postage prepaid, return receipt
requested. Notices shall be delivered or sent, as the case may be, to the
following addresses or to such other addresses as the parties may hereafter
designate by like notice similarly provided:
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If to RFS: Xxxxxxxxxxx Financial Services, Inc.
Xxx Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
With Copy to: The Xxxx Nuveen Company
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
If to RTC: Xxxxxxxxxxx Trust Company
Xxx Xxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
with copy to: Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx
Force Majeure. Anything else in this Agreement notwithstanding,
Providing Party shall be excused from providing Services hereunder while, and
to the extent that, its performance is prevented by fire, drought, explosion,
flood, invasion, rebellion, earthquake, civil commotion, strike or labor
disturbance, governmental or military authority, act of God, mechanical failure
or any other event or casualty beyond the reasonable control of Providing
Party, whether similar or dissimilar to those enumerated in this paragraph
(hereafter a "Casualty"). In the event of a Casualty, Providing Party shall
make alternate arrangements with respect to interrupted Services to Receiving
Party on the same basis and terms on which it makes such arrangements for
itself so long as Casualty coverage is a Service to be provided by the
Providing Party hereunder.
Independent Contractor. The relationship of RFS and RTC which is
created hereunder is that of an independent contractor. This Agreement is not
intended to create and shall not be construed as creating between RFS and RTC
the relationship of affiliate, principal and agent, joint venture, partnership,
or any other similar relationship, the existence of which is hereby expressly
denied.
Billing and Payment. (a) Providing Party shall xxxx Receiving Party on
a monthly basis for the Variable Service Fees due therefrom for Services
provided pursuant to the terms of this Agreement. All such bills shall contain
reasonable detail and shall be due 30 days after receipt. The failure of
Receiving Party to pay any xxxx within 30 days of receipt shall result in
Receiving Party owing Providing Party, JNC or an affiliate of JNC, as the case
may be, an
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additional handling charge equal to 1% per month of the amount due from the
date due to the payment date, unless a payment pursuant to Section 13(b) is 60
days or more in arrears in which case no additional handling charge shall be
due from the Receiving Party; provided, however, that no additional handling
charge shall be payable with respect to any amount that is disputed by the
Receiving Party.
During the term of this Agreement, RTC shall pay RFS, JNC or an
affiliate of JNC the Fixed Annual Fee as provided in Section 1(a). The failure
of RTC to pay the Fixed Annual Fee when due shall result in RTC owing RFS, JNC
or an affiliate of JNC, as the case may be, an additional handling charge equal
to 1% per month of the amount due from the date due to the payment date, and
any such Fixed Annual Fee shall not be subject to offset against payments due
RTC under Section 13(a) or otherwise.
Term. (a) This Agreement shall terminate, and the parties shall cease
to be obligated to provide Services, on the earlier of (i) tenth anniversary of
the date hereto, (ii) a RTC Default as described in Section 14(b), 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. Upon termination of this Agreement all payment
obligations of each Receiving Party shall cease except for any accrued and
unpaid liability for the Services previously rendered and, if applicable, any
payment described in Section 14(c). Notwithstanding the foregoing, if any
Schedules hereto provide for the provision of Services for a longer period,
such longer period shall govern the provision of such Services. If the parties
hereto cease to occupy immediately contiguous office space, then either
Providing Party may cease to provide any applicable service as indicated as
terminable in such instance on Schedule 1 and Schedule 2 hereto upon 60 days'
written notice.
Further, Providing Party's obligation to provide Services to the
Receiving Party hereunder shall terminate on not less than 30 days' prior
written notice by the terminating party in the event of the occurrence and
continuation of a material default by the Receiving Party hereunder. "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 dated as of the date
hereof by and 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.
In the event that this Agreement is terminated pursuant to a RTC
Default, RTC shall make payment within five business days to RFS, JNC or an
affiliate of JNC by Wire Transfer (as defined in the Stock Purchase Agreement)
of an amount equal to the present value (applying a discount rate equal to the
then prevailing prime rate of Xxxxxx Guaranty Trust Company of New York) of the
Fixed Annual Fees which have not been theretofore paid. In the event of
termination of this 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 Agreements (as defined in the
Stock Purchase Agreement) that
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is continuing, RFS's willful breach of its obligation under this Agreement to
provide research and statistical review services, RTC shall continue to pay the
Fixed Annual Fee.
Waiver. The failure of either party at any time or times to enforce or
require performance of any provision hereof shall in no way operate as a waiver
or affect the right of such party at a later time to enforce the same, except
as set forth in the first sentence of paragraph 3 hereof.
Severability. If any provision of this Agreement shall hereafter be
held to be invalid or unenforceable for any reason, that provision shall be
reformed to the maximum extent permitted to preserve the parties' original
intent, failing which it shall be severed from this Agreement with the balance
of the Agreement continuing in full force and effect. Such occurrence shall not
have the effect of rendering the provision in question invalid in any other
jurisdiction or in any other case or circumstances or of rendering invalid any
other provisions contained herein to the extent that such other provisions are
not themselves actually in conflict with any applicable law.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the day and year first above written.
XXXXXXXXXXX FINANCIAL THE XXXXXXXXXXX TRUST COMPANY
SERVICES, INC.
By:/s/ XXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXX
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Title: Title:
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