EXHIBIT 9
TRANSFER AGENT SERVICES AGREEMENT
THIS IS A TRANSFER AGENT SERVICES AGREEMENT (herein "Agreement"), made
effective as of the 1st day of September, 1997, between THE NOTTINGHAM
MANAGEMENT COMPANY, a North Carolina corporation doing business as The
Nottingham Company (herein "TNC") and NORTH CAROLINA SHAREHOLDER SERVICES, LLC,
a North Carolina limited liability company (herein "NCSS").
RECITALS
A. TNC has entered into six (6) agreements to provide certain
administrative services for investment trusts that include, but are not limited
to, transfer agent services, and anticipates entering into similar agreements in
the future.
B. The parties desire to enter into this Agreement to document the
subcontracting of all those transfer agent services to NCSS and to reflect the
performance of those services under the terms and conditions of this Agreement.
COVENANTS
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, IT IS AGREED:
1. Services. A. During the term of this Agreement NCSS agrees to perform
all of the transfer agent functions TNC is obligated to perform under the Fund
Accounting, Dividend Disbursing & Transfer Agent, and Administration Agreements
with the trusts listed on Exhibit A attached hereto (the "Administration
Agreements"), including, without limitation, those transfer agent services
described on Exhibit B attached hereto. If TNC enters into additional agreements
in the future and desires to have NCSS provide the transfer agent services
thereunder, TNC shall notify NCSS in writing of the additional agreement and the
proposed date upon which NCSS shall begin its services under the new agreement.
NCSS shall have thirty (30) days after receipt of such notice to accept or
reject the additional agreement as an addendum to Exhibit A. If NCSS accepts
such additional agreement, such agreement shall then be deemed as one of the
Administration Agreements. As set forth in Section 9 hereof, TNC shall be under
no obligation to offer NCSS and NCSS shall be under no obligation to accept the
transfer agent services under any additional agreement.
B. In connection with the transfer agent functions, NCSS shall use its
reasonable best efforts to handle customer calls and inquiries as follows:
(1) NCSS shall process transactions on the next business day on which the
New York Stock Exchange is open that follows the date of receipt of net asset
value ("NAV") supplied by TNC or such entity then processing the NAV for each
fund; provided,
however, all transactions shall be processed as of the date received if received
prior to the time of determination of NAV for that date, and if not, such
transaction shall be processed as of the next business day on which the New York
Stock Exchange is open for business.
(2) NCSS shall print and prepare for mailing all confirms and statements on
the date processed. Confirms shall be printed following all transactions.
(3) NCSS shall generate shareholder confirm/statements quarterly, within
five (5) business days of the end of the calendar quarter.
(4) NCSS shall prepare and issue redemption and dividend checks.
C. In connection with shareholder recordkeeping, all shareholder files
shall be maintained pursuant to the rules of reporting under the Investment
Company Act of 1940 (the "1940 Act"), the Securities Act of 1933, and rules for
reporting on annual Form TA-2. All records which NCSS maintains for each trust
shall be the property of such trust, and NCSS further agrees to surrender
promptly to TNC or such trust any such records upon such trust's or TNC's
request.
D. NCSS shall assist TNC with distributor-related functions by doing the
12b- 1 calculations and payments and dealer commission calculations and
payments.
E. NCSS shall process FundServ and Networking shareholder transactions
remitted via National Securities Clearing Corporation.
F. NCSS shall maintain computer files necessary to keep the IVR system
current within a reasonable period of time after daily and/or intraday
processing (as applicable).
G. NCSS shall print and mail annual shareholder tax reporting forms (Forms
1099R, 1099D and 5498, and such other forms as may become applicable by
agreement of the parties) on or before the date required by law for their
remittance.
2. Term. A. The term of this Agreement shall begin on the date hereof and,
unless terminated as herein provided, shall continue until December 31, 1998.
Thereafter the term shall be automatically renewed for one (1) year renewal
periods (January 1 through December 31) unless either TNC or NCSS notifies the
other in writing, no later than October 1 of the existing term, that it does not
desire to continue the contract, in which case this Agreement shall terminate at
the end of the then current term. Unless such notice is given, this contract
shall be automatically extended from year to year and shall remain in full force
and effect.
B. Notwithstanding anything herein contained to the contrary, the parties
shall have the right to terminate this Agreement as follows:
1. TNC shall have the right to terminate this Agreement if NCSS is in
default hereunder and NCSS fails to cure the default within thirty (30) days
after written notice from TNC.
2. NCSS shall have the right to terminate this Agreement if TNC does not
make the compensation payments when due hereunder and fails to cure such payment
default within ten (10) days after notice thereof from NCSS, or is otherwise in
default hereunder and fails to cure the default within thirty (30) days after
written notice from NCSS.
3. Either party may terminate this Agreement as provided in Section 3
hereof or at anytime upon ninety (90) days prior written notice.
4. NCSS may terminate this Agreement as provided in Section 7 hereof.
5. Either party may terminate this Agreement in the event of the
termination by the other party of the Sublease Agreement by and between the
parties hereto of even date herewith attached as Exhibit C.
Termination of this Agreement shall not affect any liability of the parties
accruing prior to such termination.
C. In addition to the foregoing, if TNC determines in the exercise of its
reasonable judgment that NCSS is not providing the services under this Agreement
in a fashion that will fully perform TNC's obligations under the Administration
Agreements or that NCSS is acting or failing to act in a fashion that would
otherwise result in liability to TNC under or in connection with the
Administration Agreements, TNC may require NCSS to suspend its activities
hereunder until TNC is satisfied that such services will be performed as
required under this Agreement.
3. Compensation. As full payment for the services to be performed by NCSS
hereunder, TNC shall pay NCSS a monthly payment which shall be the greater of
$____________ or 85(cent) per shareholder serviced per month. In the event
either: (i) the "per shareholder" fee is greater than the set monthly fee, or
(ii) the actual costs of TNC in connection with this Agreement begin to exceed
the greater of the set monthly fee or the per shareholder fee set forth above as
a result of NCSS providing services to third parties, then the parties shall
negotiate in good faith to reduce the set monthly fee to an amount which will
equitably compensate TNC for providing facilities and equipment under this
Agreement. If the parties are unable to agree on a decreased rate within ten
(10) days after beginning to negotiate the same, either party may terminate this
Agreement upon thirty (30) days written notice. NCSS hereby agrees to permit TNC
access to its books, records and facilities as may be reasonably necessary for
TNC to perform its obligations under this Agreement and to assess the accuracy
and completeness of the representations and warranties of NCSS.
4. Additional Covenants of TNC. A. Simultaneously with the execution of
this Agreement, TNC will lease certain office space to NCSS under the Sublease
Agreement attached hereto as Exhibit C.
B. During the term of this Agreement, TNC will use its good faith efforts
to provide reasonable programming assistance from its existing staff on an as
needed, "on call", basis during normal business hours on days when the New York
Stock Exchange is open for business.
C. During the term of this Agreement, TNC will also maintain and make
available to NCSS, at TNC's expense, the following:
1. All hardware necessary to run the then current volume of business
serviced by TNC as listed on Exhibit D attached hereto.
2. Dedicated drives on its networked computer system, including electronic
password protections.
3. Software necessary to process all shareholder services to be performed
by NCSS as set forth on Exhibit E attached hereto.
4. All telephone equipment and long distance services under TNC's then
current contractual arrangement(s) with telephone hardware and service
providers. NCSS shall provide TNC with an accounting of those calls attributable
to specific funds.
5. Complaints. NCSS shall immediately notify TNC of all known complaints,
notices of default or other communications received or otherwise known by NCSS
other than those involved in the normal provision of the services hereunder by
NCSS, if any, from the other contracting parties under the Administration
Agreements or any other third party that relates to the rights or obligations of
TNC.
6. Employee Benefit Plans. During the term of this Agreement, NCSS, at its
cost and expense, shall adopt and participate as an additional employer
thereunder all employee benefit programs TNC has existing on the date of this
Agreement, including, but not limited to: (i) health insurance, (ii) disability
insurance, (iii) retirement plan(s) and (iv) dental insurance. The plans shall
provide the employees of each party with credit for services while in the employ
of the other party.
7. Liability Insurance. TNC agrees to use its good faith efforts to add
NCSS as an additional named insured on all property and liability, including,
but not limited to, errors and omissions insurance, policies, if any, on the
date of this Agreement covering TNC or its property; provided, however, that
such efforts shall not require TNC to increase the premiums it pays on such
insurance. If NCSS is not added as an additional named insured on all such
property and liability policies, NCSS shall have the right to terminate this
Agreement
immediately upon written notice to TNC. If, after NCSS has been placed under
coverage of any of such insurance policies, such policies are canceled or expire
without renewal, NCSS shall have the option to terminate this Agreement upon
thirty (30) days prior written notice to TNC.
8. Representations and Warranties of NCSS. A. NCSS acknowledges that TNC
makes no representations or warranties, express, implied or otherwise,
concerning the results of NCSS's operations under this Agreement.
B. At all times during the term of this Agreement, ▇▇▇▇ ▇. Marriott
("Marriott") shall own at least eighty (80%) percent of the interests in profits
and capital of NCSS and shall retain full and complete management
responsibilities for its operations.
9. Non-Exclusivity-Conflicts of Interest. The parties hereto agree that
this Agreement shall not be considered exclusive by either party. TNC retains
the right to subcontract services to be provided under contracts other than the
Administration Agreements, including, without limitation, those of the type
provided by NCSS hereunder, to other firms capable of providing such services.
NCSS retains the right to market its services to other parties and to collect
fees and compensation for such services, as long as its services under this
Agreement are not impaired thereby.
10. Limitation of Liability and Indemnification. A. NCSS may rely on
information from TNC reasonably believed by it to be accurate and reliable.
Except as may otherwise be required by the 1940 Act and the rules thereunder,
neither NCSS nor its officers, directors, members, employees, agents, control
persons, or affiliates of any thereof shall be liable for any error of judgment
or mistake of law or for any loss or damage suffered by TNC in connection with
the performance of services by NCSS under this Agreement, except a loss
resulting directly from the willful misfeasance, bad faith or gross negligence
on the part of NCSS in the performance of its duties or from reckless disregard
by NCSS of its duties under this Agreement.
B. To the extent permitted by law, TNC shall indemnify and hold harmless
NCSS, its directors, officers, members, employees and agents from and against
any and all claims, demands, expenses, fees (including, without limitation,
reasonable attorney's and accountant's fees), fines, penalties, loss and
liabilities of any and every nature which NCSS may sustain or incur by reason
of, or as a direct result of: (i) any action taken or omitted to be taken by
NCSS in good faith in reliance upon any certificate, instrument, order or share
certificate reasonably believed by it to be genuine and to be signed,
countersigned or executed by any duly authorized person, upon the oral
instructions or written instructions of an authorized person of TNC or upon the
opinion of legal counsel for TNC; (ii) any action taken or omitted to be taken
by NCSS in connection with its appointment in good faith in reliance upon any
law, act, regulation, or interpretation of the same even though the same may
thereafter have been altered, changed, amended or repealed; or (iii) TNC's gross
negligence, willful misfeasance, bad faith, or reckless disregard of or in
regard to its duties or services hereunder. However, indemnification under this
subparagraph shall not apply to actions or omissions of NCSS or its
directors, officers, employees, or agents in cases of its or their own gross
negligence, willful misfeasance, bad faith, or reckless disregard of its or
their own duties hereunder.
C. To the extent permitted by law, NCSS shall indemnify and hold harmless
TNC, its officers, agents, directors, shareholders and employees from and
against any and all claims, demands, expenses, fees (including, without
limitation, reasonable attorney's and accountant's fees), fines, penalties, loss
and liabilities of any and every nature which TNC or such persons may sustain or
incur by reason of, or as a result of NCSS's gross negligence, willful
misfeasance, bad faith, or reckless disregard of or in regard to its duties or
services hereunder.
11. Cross-Employment. Until the expiration or earlier termination of this
Agreement, no employee of NCSS may be employed by TNC.
12. No Partnership or Joint Venture. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture between the parties
hereto. Neither party shall have the power or right to bind or act for the other
except as expressly provided herein. NCSS shall pay all salaries, compensation,
and other benefits of its employees, and TNC shall have no responsibility
whatsoever for the same. NCSS shall keep in full force and effect all required
worker's compensation insurance for its employees, shall be responsible for all
social security and unemployment compensation payments and benefits, and shall
be responsible for all withholding taxes due and becoming due upon the
compensation of such employees. All contracts of employment of the NCSS
employees shall be made directly with NCSS, and TNC shall have no control
whatsoever over any such person or persons or authority to direct their activity
in any manner whatsoever. The provisions of this Section 12 shall not restrict
TNC's right to enforce the provisions of this Agreement.
13. Force Majeure. Performance hereunder shall be extended for a period of
time equal to the delay caused by or resulting from an act of God, war, civil
disruption, casualty, shortages of energy, materials or equipment, government
regulations, delays caused by either party to the other, or causes beyond the
control of such party.
14. Waiver. The failure of either party to enforce at any time any of the
provisions of this Agreement, to require at any time performance by the other
party of any of the provisions hereof, or to resort to any remedy or to exercise
one or more remedies, shall in no way be construed to be a waiver of such
provisions, nor in any way to affect the validity of this Agreement or any part
hereof, or the right of such party thereafter to enforce each and every such
provision.
15. Compliance With Laws. NCSS and TNC shall obtain, each at its own
expense, all necessary authorizations, licenses and permits necessary for it to
perform under this Agreement. NCSS hereby covenants and agrees that it shall
comply with all federal, state and local laws, rules and regulations applicable
to the services performed by it hereunder. TNC hereby covenants and agrees that
it shall comply with all federal, state and local laws, rules and
regulations applicable to the services performed by it pursuant to the
Administration Agreements.
16. Assignment by TNC. TNC reserves the right to assign this Agreement and
its interest hereunder with the prior written consent of NCSS, which consent
shall not be unreasonably withheld. Upon any such assignment, TNC shall have no
further obligations or liabilities under this Agreement except to satisfy
obligations and payments then owed to NCSS.
17. Non-Assignability by NCSS. The rights, duties and obligations under
this Agreement may not be assigned or subcontracted by NCSS, without the prior
written consent of TNC, which consent may be withheld for any reason. Any
assignment or subcontracting by NCSS with the consent of TNC shall relieve NCSS
from any of its obligations or liabilities hereunder. For the purposes of this
Section a sale, gift or other transfer of Marriott's controlling interest in, or
control of, NCSS shall be deemed an assignment of this Agreement.
18. Benefit. Subject to NCSS's and TNC's restrictions on assignment
contained herein, the provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns.
19. Notice. Any notice, consent or other communication permitted or
required by this Agreement to be given to a party shall be in writing and
addressed to such party at the following address or transmitted via facsimile
machine (provided documentation of completed transmission is retained) to the
following facsimile number:
If to TNC:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
If to NCSS:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. Marriott
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
unless a different individual, address or facsimile number shall have been
designated by the respective party by notice in writing in accordance herewith.
Any notice given hereunder shall be deemed given when delivered by hand, one (1)
day after being transmitted by facsimile or three (3) days after being deposited
in the United States mail, postage prepaid, certified mail (return receipt
requested).
20. Severability. If any provision of this Agreement, or portion thereof,
shall be determined to be void or unenforceable by any court of competent
jurisdiction, then such determination shall not affect any other provision of
this Agreement, or portion thereof, all of which other provisions and portions
thereof shall remain in full force and effect.
21. Survivorship. Where any covenants, indemnities or other provision
contained in this Agreement, by its context or otherwise, evidences the intent
of the parties that such provision should survive the expiration or other
termination of this Agreement, the provision shall survive the expiration or
other termination of this Agreement, including, without limitation, the
provisions of Section 10 hereof.
22. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina, notwithstanding the
principles of conflicts of law.
23. Headings. The section headings provided herein are for convenience only
and are not intended to define or limit the contents of the provisions of the
paragraphs herein.
24. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter described hereof
and this Agreement may not be modified except by a writing executed by the
parties hereto. All exhibits and schedules (current and supplemental) are hereby
incorporated in this Agreement by reference.
IN WITNESS WHEREOF, TNC and NCSS each has caused this Agreement to be
executed in its name and sealed by its duly authorized representative, with NCSS
adopting the word "SEAL" following its name as its seal, all as of the day and
year first above written.
THE NOTTINGHAM MANAGEMENT COMPANY
BY:_______________________________
President
ATTEST:
Secretary
NORTH CAROLINA SHAREHOLDER
SERVICES, LLC (SEAL)
BY:________________________________
Manager
EXHIBIT A
Quaker Investment Trust
Nottingham Investment Trust II
▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Trust
Albemarle Investment Trust
Capital Management Investment Trust
GrandView Investment Trust
EXHIBIT B
TRANSFER AGENT SERVICING FUNCTIONS
1. Process new accounts.
2. Process purchases, both initial and subsequent in accordance with
conditions set forth in each fund's prospectus.
3. Transfer shares of capital stock to an existing account or to a new account
upon receipt of required documentation in good order.
4. Distribute dividends and/or capital gain distributions. This includes
disbursement as cash or reinvestment and to change the disbursement option
at the request of shareholders.
5. Process exchanges between funds (process and direct purchase/redemption and
initiate new account or process to existing account).
6. Make miscellaneous changes to records, including, but not necessarily
limited to, address changes and changes in plans (such as systematic
withdrawal, dividend reinvestment, etc.).
7. Prepare and mail a year-to-date confirmation and statement as each
transaction is recorded in a shareholder account.
8. Handle telephone calls and correspondence in reply to shareholder requests
except those items otherwise set forth herein.
9. Daily control and reconciliation of each fund's shares.
10. Prepare address labels or confirmations for four reports to shareholders
per year.
11. Mail and tabulate proxies for meetings of shareholders as required,
including preparation of certified shareholder list and daily report to
each fund's management, if required.
12. Prepare and mail annual Form 1099, Form W-2P and 5498 to shareholders to
whom dividends or distributions are paid, with a copy for the IRS.
13. Provide readily obtainable data which may from time to time be requested
for audit purposes.
14. Replace lost or destroyed checks.
15. Continuously maintain all records for active and closed accounts.
16. Furnish shareholder data information for a current calendar year in
connection with ▇▇▇ and ▇▇▇▇▇ Plans in a format suitable for mailing to
shareholders.
EXHIBIT C
NORTH CAROLINA
EDGECOMBE COUNTY
SUBLEASE AGREEMENT
WITNESS THIS SUBLEASE AGREEMENT, executed in duplicate originals, made
effective as of the 1st day of September, 1997 by and between THE NOTTINGHAM
MANAGEMENT COMPANY (herein the "LESSOR"), and NORTH CAROLINA SHAREHOLDER
SERVICES, LLC, a North Carolina limited liability company (herein the "LESSEE").
In consideration of the rent stated and the covenants, terms and
conditions hereinafter provided, the LESSOR does demise, let and lease unto the
LESSEE, and the LESSEE rents from the LESSOR, a certain tract or parcel of land
together with the improvements situated thereon and all rights appurtenant
thereto, situated in Edgecombe County, North Carolina, and being more
particularly described as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
The certain tract or parcel of land hereinabove described, together
with the improvements thereon and all rights appurtenant thereto, shall
hereinafter be referred to as the "Premises."
TO HAVE AND TO HOLD, the Premises unto the LESSEE, for and during the
term hereinafter set forth and any extension thereof as herein provided.
1. TERM. The term of this Agreement (herein the "Agreement") shall
commence on the date hereof and, unless sooner terminated as herein provided,
shall end on December 31, 1998.
2. RIGHT TO EXTEND. The LESSEE shall have the right to extend the term
of this Agreement for three additional one (1) year terms, such extensions to be
on the same terms, covenants and conditions as the original term, unless
otherwise specifically provided for, and such shall commence upon the expiration
of the then current term and shall end one year from said date. The option to
extend the term for the additional terms shall be exercised by the LESSEE giving
the LESSOR written notice of such desire to do the same, not later than sixty
(60) days prior to the expiration of the then current term.
3. RENT. The monthly rental for the original term hereof shall be TWO
HUNDRED FIFTY DOLLARS ($250). Such rental shall be paid (in advance) in cash or
by company check and shall be due the first day of each month, throughout the
term of this Agreement. The first and last payment of rental hereunder, if made
for a period of less than one month, shall be prorated on the basis of the total
number of days for which lease is due during either such month. Monthly rental
for any additional term shall be as follows: 1st add'l.
term-$300; 2nd add'l. term-$350; third add'l. term-$400.
4. HARDWARE AND SOFTWARE. In connection with the lease and use of the
Premises, the LESSOR hereby leases and sublicenses to the LESSEE the personal
property listed on Schedule A attached hereto (herein the "Hardware") and the
software listed on Schedule B
attached hereto (herein the "Software"). Herein the Hardware and Software are
referred to collectively as the "Leased Equipment".
5. USE OF PREMISES AND LEASED EQUIPMENT. (a) The LESSEE may occupy and
use the Premises and Leased Equipment only for use as a transfer agent service's
business and for general office purposes. The LESSEE shall not permit, allow or
cause any act or deed to be performed or any practice to be adopted or followed
in or about the Premises which shall be illegal or constitutes a nuisance.
(b) LESSEE agrees that during the term of this Agreement and
thereafter, except as permitted by LESSOR or as required by law, LESSEE shall
not copy, sublicense or disclose to any person, firm or entity the Software or
any of the information regarding the Software.
(c) Representatives of the LESSEE have inspected the Premises and the
Leased Equipment and found them suitable for the LESSEE's purposes. BY THE
EXECUTION OF THIS AGREEMENT, THE LESSEE SHALL BE DEEMED TO HAVE ACCEPTED THE
PREMISES AND THE USE OF THE LEASED EQUIPMENT IN AN AS-IS CONDITION AND
ACKNOWLEDGED THAT THE LESSOR HAS MADE NO REPRESENTATIONS OR WARRANTIES (EXPRESS,
IMPLIED OR OTHERWISE) WITH RESPECT TO THE PREMISES, THE LEASED EQUIPMENT OR THE
LESSEE'S BUSINESS, INCLUDING, WITHOUT LIMITATION, A WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
6. IMPROVEMENTS. The LESSEE shall make no modifications, alterations or
additions in or to the Premises or the Leased Equipment without obtaining the
prior written consent of the LESSOR, which consent may be withheld for any
reason. Notwithstanding anything contained herein to the contrary, the LESSEE
shall erect and maintain an appropriate sign upon the Premises in order to
identify itself as the operator of the LESSEE's Business located upon the
Premises.
7. LOSS OF PROPERTY OR DAMAGE. The LESSOR shall not be liable for any
damage to any other property of the LESSEE or others, located on the Premises,
nor for the loss of or damage to any property of the LESSEE or of others, by
theft or otherwise, unless caused by the intentional or grossly negligent
actions or omissions of LESSOR.
8. TAXES AND ASSESSMENTS. The LESSOR shall pay all ad valorem taxes,
special assessments and all other governmental assessments or impositions of
every kind and character charged or assessed against the Premises or the Leased
Equipment during the term of this Agreement and any extension thereof. The
LESSEE shall pay all ad valorem taxes on its personal property during the term
of this Agreement.
9. ASSIGNMENT AND SUBLETTING. The LESSEE shall not assign this lease or
any interest herein, or let the Premises or the Leased Property or any part
thereof, or any right or privilege appurtenant thereto, nor permit the occupancy
or use of any part thereof, by any other person without the prior written
consent of the LESSOR, which consent may be withheld for any reason.
10. LIABILITY INSURANCE. During the original term of this Agreement and
any extension thereof, the LESSOR shall maintain with an insurance company
approved by the LESSEE, at the LESSOR's sole cost and expense, general business
and public liability insurance against personal injury growing out of LESSEE's
use of the Premises; such coverage shall be maintained with minimum liability
limits of $500,000 for general business, public liability and personal injury.
The LESSOR and the LESSEE shall be named as a party insured on any such policy.
The LESSOR shall maintain property and casualty insurance on the building in
which the Premises are located and the Hardware, to the extent it, in its sole
discretion, deems appropriate.
11. LESSOR'S INDEMNITY. The LESSEE shall Indemnify, Defend and Hold
Harmless the LESSOR, and its officers, agents and employees against any and all
loss, damage, costs (including but not limited to reasonable attorney's fees),
claims, liabilities, demands, expenses, fines, penalties, clean-up costs and
other pollution related items, judgments and executions (whether arising out of
a third party claim or one made by LESSOR) arising out of any failure of the
LESSEE in any respect to comply with the provisions of this Agreement, or
arising out of the LESSEE's use or occupancy of the Premises or the Leased
Equipment during the original term of this Agreement and any extension thereof.
The LESSEE's maintenance of insurance shall in no way limit its responsibility
under this Section 11 which shall survive the expiration or earlier termination
of this Agreement and, nothing in this Section 11 shall change the rights or
obligations of the parties under the Transfer Agent Services Agreement of even
date herewith between the LESSOR and the LESSEE.
12. UTILITIES AND SERVICES. The LESSOR shall pay for all water, fuel,
gas, oil heat, electricity, power, materials and services which may be furnished
the LESSEE or used in or about the Premises. The LESSEE shall not take any
action which would result in the imposition of any lien or encumbrance of any
kind whatsoever created on the Premises or the Leased Equipment.
13. REPAIR AND MAINTENANCE. The LESSOR shall, at the LESSOR's sole cost
and expense, use its good faith efforts to maintain the improvements on the
Premises during the original term of this Agreement and any extension thereof.
At the end of the lease term or sooner termination hereof, the LESSEE shall
return the improvements on the Premises and the Leased Equipment to the LESSOR
in as good condition as at the beginning of the lease term, ordinary wear and
tear excepted. LESSOR shall, at LESSOR'S sole cost and expense, use its good
faith efforts to maintain the Leased Equipment.
14. DEFAULT OF LESSEE. Any one or more of the following events shall
constitute events of default;
(i) The LESSEE'S failure to make payment of rent when the same shall be
due and payable;
(ii) The LESSEE'S failure to perform any of the other covenants,
conditions or agreements imposed upon the LESSEE under this Agreement and the
continuance of such failure without the curing of same for a period of fifteen
(15) days after mailing or delivery to the LESSEE of notice in writing from the
LESSOR specifying the nature of such failure;
(iii) If the LESSEE shall be adjudicated as bankrupt, or if a receiver
or trustee shall be appointed for the LESSEE's property and affairs, or they or
any of them shall make an assignment for the benefit of creditors or shall
voluntarily file in bankruptcy or insolvency or for reorganization or shall make
application for the appointment of a receiver and such adjudication,
appointment, assignment of petition shall not be set aside, vacated or
discharged within One Hundred Twenty (120) days after the issuance of the same;
(iv) The levy or execution, attachment or other taking of the LESSEE's
assets which are on the Premises or the leasehold interest of the LESSEE
hereunder, by process of law or otherwise in satisfaction of any judgment, debt
or claim;
(v) The abandonment of the Premises, or
(vi) The termination for any reason of the Transfer Agent Services
Agreement of even date herewith between the LESSOR and the LESSEE.
Upon the occurrence of any of the above events of default, the LESSOR may, at
the LESSOR's option, give the LESSEE written notice of the LESSOR's election to
end the term of this Agreement upon a date specified in such notice, which date
shall be not less than five (5) days after the date of delivery or mailing by
the LESSOR of such notice. On the date specified in said notice, the term and
estate hereby vested in the LESSEE shall cease and any and all other right,
title and interest of the LESSEE hereunder shall likewise cease without further
notice or lapse of time as fully and with like effect as if the entire term of
this Agreement had expired; provided, however, that the LESSEE shall continue to
be liable to the LESSOR as hereinafter provided. Upon termination of this
Agreement, the LESSEE shall return to the LESSOR all of the Leased Equipment and
shall not retain any copies of the Software.
Upon any termination of the term of this Agreement pursuant to this
Section, or at any time thereafter, the LESSOR may exercise and pursue any and
all rights and remedies the LESSOR shall have at law or in equity. In addition,
and without prejudice to any other rights and remedies the LESSOR shall have at
law or in equity, the LESSOR may re-enter the Premises and dispossess any or all
occupants of the Premises in the manner prescribed by law, and the LESSEE in
such case shall remain liable to the LESSOR as hereinafter provided.
In case of any such default, re-entry, expiration and/or dispossession;
(i) The LESSOR shall retain all rental paid up to the time of such
re-entry, expiration and/or dispossession; and
(ii) The LESSOR may, at its sole option, relet the Premises and/or the
Leased Equipment or any part hereof, either in the name of the LESSOR or
otherwise, for a term or terms which may, at the LESSOR's option, be less than
or exceed the period which would otherwise have constituted the balance of the
term of this Agreement and retain all rental payments received for such term or
terms.
(iii) The LESSEE shall also pay to the LESSOR as liquidated damages for
the failure of LESSEE to observe and perform LESSEE's covenants herein contained
the deficiency, if any,
between the rents hereby reserved and covenanted to be paid and the amount of
the rents collected on account of the reletting of the Premises or the Leased
Equipment for each month of the period which would otherwise have constituted
the balance of the term of this Agreement. In computing such liquidated damages
there shall be added to the said deficiency such sums as are required to pay
reasonable expenses the LESSOR may incur in connection with reletting, such as
brokerage fees, attorney's fees and preparation for reletting. If such reletting
is for a period equal to or in excess of the balance of the term of this
Agreement, any such liquidated damages shall be due and payable upon the date
the Premises and/or Leased Equipment are relet, otherwise payment shall be made
in monthly installments by LESSEE on the rent date specified in this Agreement.
Any suit brought for any month shall not prejudice in any way the
rights of the LESSOR to collect the deficiency month by a similar proceeding. If
the institution of suit is necessary to enforce the LESSOR's right to collect
liquidated damages, the LESSOR shall have the option to institute suit, (a) when
the Premises and/or Leased Equipment are relet, (b) as such damages accrue, (c)
periodically for such accrued liquidated damages at such intervals as it shall
desire, or (d) on the date fixed herein for the expiration of the lease term.
15. EMINENT DOMAIN. In the event the Premises are made subject to a
proceeding by which the right of eminent domain is exercised, or any like
proceeding, if such resistance is feasible, the parties hereto shall join and
cooperate in prosecuting their respective claims for damages incurred from the
successful exercise of such right or proceeding.
If the whole of the Premises is taken in any proceeding by which the
right of eminent domain is exercised, or any like proceeding, this Agreement
shall terminate; provided, however, that the parties hereto shall remain liable
for any and all liabilities or obligations incurred under this Agreement prior
to such termination. Any condemnation award shall be apportioned as the interest
of the parties shall appear.
If, however, the aforesaid exercise of the right of eminent domain, or
other like proceeding, results in the taking of less than the whole of the
Premises:
(a) If the Premises are condemned to the extent that it is no longer
feasible for the LESSEE to effectively use the Premises for the uses
contemplated, the LESSEE may terminate this lease by written notice to the
LESSOR. Such written notice must be mailed to the LESSOR within thirty (30) days
after the happening of such event and must specify the termination date, which
date must be within one hundred twenty (120) days of such taking. The lease will
then terminate on the date specified; provided, however, that the parties hereto
shall remain liable for any and all liabilities and obligations incurred under
this Agreement prior to such termination. The award made for such taking shall
be apportioned between the LESSOR and the LESSEE as their interests shall
appear. If the LESSEE does not exercise the privilege of termination within the
time herein specified, this lease shall continue in full force and effect
subject to the provisions of Paragraph (b) of this Section.
(b) If the Premises are partially condemned but the LESSEE can continue
to effectively use the Premises for the use contemplated, this lease shall not
terminate but shall continue with such abatement of rent and other adjustments
as shall be just and equitable.
16. HOLDING OVER, In the event the LESSEE continues to occupy the
Premises and/or use the Leased Equipment after the last day of the original term
of this Agreement and any extension thereof and the LESSOR agrees to accept rent
thereafter, the LESSEE shall occupy the Premises and/or the Leased Equipment as
a LESSEE from month to month, subject to all the conditions of this Agreement
consistent with such a tenancy.
17. SURRENDER OF PREMISES. At the expiration of the original term of
this Agreement and any extension thereof or other termination of this Agreement
as herein provided, the LESSEE shall peaceably surrender possession of the
Premises and the Leased Equipment to the LESSOR.
18. ENTRY AND INSPECTION. The LESSEE shall permit the LESSOR to enter
the Premises at any reasonable time to inspect the Premises and Leased Equipment
or to take any other actions to which the LESSOR is reasonably obligated to take
under this Agreement or under any governmental law or regulation. LESSEE shall
at all times provide the LESSOR with a current copy of any keys used in the
Premises to ensure the right of Entry and Inspection.
19. DESTRUCTION OF THE PREMISES OR THE LEASED PROPERTY. In the
event of a total or partial destruction of the improvements upon the Premises or
substantially all of the Leased Equipment during the original term of this
Agreement or any extension thereof, by any cause, the LESSOR may at the LESSOR'S
option repair or replace such improvements and or Leased Equipment at the
LESSOR's own cost and expense and the LESSOR may, but is not obligated to, use
any insurance proceeds for such purpose. If the LESSOR repairs or replaces such
improvements or Leased Equipment this Agreement shall remain in full force and
effect; provided, however, the rent payable hereunder shall ▇▇▇▇▇ for the time
during which, and to the extent to which, the Premises or such substantial
portion of the Leased Equipment cannot be used by the LESSEE for its intended
use. If LESSOR chooses not to elect to repair or replace such improvements or
Leased Equipment, this Agreement shall terminate; provided, however, that the
parties hereto shall remain liable for any and all liabilities or obligations
incurred under this Agreement prior to such termination.
20. LAWS AND REGULATIONS. The LESSEE, at the LESSEE's own cost and
expense, shall comply promptly with all laws, rules and orders of all
governmental authorities which may be applicable to the Premises or any business
conducted thereon during the original term of this Agreement and any extension
thereof.
21. NOTICES. All notices to be given hereunder shall be made in
writing. Such notices shall be deemed given when delivered or deposited in the
United States Mail, Certified or Registered, with postage prepaid, addressed to
the respective parties or their representatives as follows:
If to the LESSOR: The Nottingham Management Company
Post Office Box 69
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the LESSEE: North Carolina Shareholder Services, LLC
Post Office Box 4365
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as either party may have directed to the other in
writing.
22. QUIET ENJOYMENT. The LESSOR covenants and warrants that the LESSEE
shall, by paying the rent herein reserved and by performing the covenants and
conditions herein contained, at all times during the term of this Agreement and
any extension thereof, peaceably have, hold and quietly enjoy the Premises for
such term and any extension thereof, and the LESSOR shall defend the same
against all persons whomsoever.
23. RELATIONSHIP OF THE PARTIES. It is hereby understood and agreed
that the relationship of the parties hereto is strictly that of landlord and
tenant of the Premises and the LESSOR has no ownership in the LESSEE'S
enterprise and that this Agreement shall not be construed as a joint venture or
partnership. The LESSEE is not and shall not be deemed to be an agent or
representative of the LESSOR.
24. BINDING EFFECT. Subject to the provisions of Section 29 hereof, all
the terms, covenants, and conditions hereof shall be binding upon the parties
hereto and shall bind and inure to the benefit of their successors and assigns.
25. WAIVERS. Failure of the LESSOR or the LESSEE to complain of any act
or omission on the part of the other party, no matter how long the same may
continue, shall not be deemed to be a waiver by said party of any of its rights
hereunder. No waiver by the LESSOR or the LESSEE at any time, express or
implied, of any breach of any of the provisions of this Agreement shall be
deemed a consent to any subsequent breach or the same or any other provisions.
No acceptance by the LESSOR of any partial payment shall constitute an accord or
satisfaction but shall only be deemed a part payment hereunder.
26. RECORDING. The LESSEE may record a memorandum hereof, and the cost
of any and all fees or charges attendant with such recordation shall be paid by
the LESSEE.
27. CONSTRUCTION. This Agreement shall be governed and enforced in
accordance with the laws of the State of North Carolina. If any provision of
this Agreement shall be determined to be void by any court of competent
jurisdiction, then such determination shall not affect any other provision of
this Agreement, all of which other provisions shall remain in full force and
effect. If any provision of this Agreement is capable of two interpretations,
one of which would render the provision void and the other of which would render
the provision valid, then the provision shall have the meaning which renders it
valid.
28. CAPTIONS. The captions and section numbers appearing in this
Agreement are inserted only as a matter of convenience and in define, limit,
construe or describe the scope or intent of such sections.
29. ASSIGNMENT. LESSOR reserves the right to assign this Agreement and
any of its interests hereunder without the prior consent of LESSEE. Upon such
assignment,
LESSOR shall have no further obligations or liabilities under this Agreement.
LESSEE may not assign or sublease this Agreement or any interest therein, or
sublet the Premises or the Hardware, or any interest therein, or sublicense the
Software or any interest therein, without the prior written consent of LESSOR,
which consent may be withheld for any reason. Any assignment or subletting by
LESSEE, even with the consent of LESSOR, shall not relieve LESSEE from any and
all of its obligations or liabilities hereunder. For the purposes of this
Section, a sale, gift or other transfer of a controlling interest in or control
of LESSEE shall be deemed an assignment of this Agreement.
30. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties. It may be changed only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification, extension or
discharge is sought. All exhibits and schedules attached hereto are incorporated
herein by reference.
IN WITNESS WHEREOF, the LESSOR and the LESSEE each has caused this
Agreement to be executed in its name and sealed by its duly authorized
representatives, with the LESSEE adopting the word "SEAL" following its name as
its seal, all as of the day and year first above written.
THE NOTTINGHAM MANAGEMENT COMPANY
BY:_______________________________
President
ATTEST:
Secretary
(CORPORATE SEAL)
NORTH CAROLINA SHAREHOLDER
SERVICES, LLC
(SEAL)
BY:________________________________
Manager
SCHEDULE A
4 486 or better CPU's
4 Color Monitors
4 Laser Printers
1 Dot Matrix Printer
4 Adding Machines
2 External Modems
4 Atcom Phone Units with display
4 Modular 3 piece desk units
1 Fax machine
1 Copy machine
5 Large filing cabinets
5 Office Chairs
3 Individual filing cabinets
1 Windows NT Server (or connection to TNC server)
SCHEDULE B
Windows 95 or better
Microsoft Word
Microsoft Excel
Word Perfect (to be phased out) Lotus 123 (to be phased out) MAS 90 Bottom Line
Check writing program TA Program suitable for business volume
Software (individually loaded or network accessible)
EXHIBIT D
4 486 or better CPU's
4 Color Monitors
4 Laser Printers
1 Dot Matrix Printer
4 Adding Machines
2 External Modems
4 Atcom Phone Units with display
4 Modular 3 piece desk units
1 Fax machine
1 Copy machine
5 Large filing cabinets
5 Office Chairs
3 Individual filing cabinets
1 Windows NT Server (or connection to TNC server)
EXHIBIT E
Windows 95 or better
Microsoft Word
Microsoft Excel
Word Perfect (to be phased out) Lotus 123 (to be phased out) MAS 90 Bottom Line
Check writing program TA Program suitable for business volume
Software (individually loaded or network accessible)