EXHIBIT 10.12
SERVICES AGREEMENT
BISYS, INC. ▇▇▇▇▇▇▇▇ ▇▇.
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▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Price List No.
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Client First Bank and Trust Company
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Address ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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City Providence State Rhode Island Code 02901-0758
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1. SCOPE OF AGREEMENT
Client agrees to convert to the BISYS system (defined in Paragraph 2(C) below)
and BISYS, Inc. ("BISYS") shall provide Client, in accordance with this
Agreement, the services selected by Client from BISYS' then applicable Standard
Services Price List and/or Special Services Price List (collectively, the "Price
Lists") (collectively, the "Services"). BISYS shall provide the reports listed
on the Standard Reports List and Special Reports List as applicable to the
Services selected by Client. The current Price Lists are attached hereto and
made a part hereof.
2. TERM OF AGREEMENT
A. The initial term of this Agreement shall commence the date this Agreement is
executed by both parties and end 96 full calendar months after the
"Conversion Date" (as defined in Paragraph 4 (B)) (the "Initial Period").
B. The Agreement shall automatically continue after the Initial Period for
subsequent consecutive terms of three years each unless and until it is
terminated by either party upon written notice to the other given at least
180 days prior to the end of the Initial Period or any additional three year
period.
C. If Client has given BISYS notice pursuant to Paragraph 2(B) and Client
intends to deconvert from the BISYS data processing system ("BISYS System"),
Client may, upon written notice to BISYS given at any time during the final
120 days of this Agreement (as determined in accordance with 2(B) above) or
any extension hereof pursuant to this Paragraph 2(C), extend the termination
date to the date indicated in such notice, which date shall not be, in any
event, less than 120 days after the date of such notice. Commencing at the
end of the Initial Period or any renewal period (as applicable), Client
shall pay for Services at the prices set forth in the then current BISYS
Price Lists notwithstanding the giving of extension notice.
D. Continuing obligations under this Agreement including, without limitation,
those relating to "BISYS Products" (defined in Paragraph 10(A));
"Confidential Information" (defined in Paragraph 10(F)) and "Client Files"
(defined in Paragraph 8(A)), shall survive any termination.
3. CHARGES
A. Each month commencing Conversion Date, whether or not Client actually uses
any Services during such month, Client shall pay a minimum monthly charge
equal to the greater of (i) $ ; (ii) BISYS' charges for the Services
actually used by Client during such month; (iii) 80% of the charges invoiced
to Client during the immediately preceding month; or (iv) 80% of the charges
invoiced to Client for the month immediately preceding any deconversion by
Client if Client deconverts from the BISYS System.
B. The initial charges for the Services are specified in the Price Lists, and
shall be recorded by the BISYS System or by any other means used by BISYS of
determining Client's usage. The charges for the Services listed on the
Standard Services Price List as of the date hereof will not be changed by
BISYS until the expiration of the first year following Conversion Date.
Thereafter, during the remaining term of the Initial Period, the charges for
the Services listed on the Standard Services Price List may be changed by
BISYS at any time and from time to time upon at least 90 days prior written
notice to Client. During the Initial Period, the charges for the Services
listed on the Special Services Price List as of the date hereof may be
changed by BISYS at any time after the date hereof upon at least 90 days
prior written notice to Client. After the Initial Period, the charges for
the Services listed on the Price Lists shall automatically, and without
notice, be changed to BISYS' standard (non-discounted) list prices then in
effect for the respective Services; such prices may, thereafter, be changed
by BISYS, at any time and from time to time, upon at least 90 days prior
written notice to Client.
C. There shall be added to all charges for the Services furnished Client
hereunder amounts equal to any applicable taxes levied or based on such
Services, exclusive of taxes based on BISYS' income.
D. No later than the 5th day of each calendar month, BISYS shall invoice (the
"Monthly Invoice") Client: (i) for all Services projected to be used by
Client during that billing month (the "Billing Month") which charge will be
based upon either actual usage and number of accounts during the month prior
to the Billing Month or the minimum charge pursuant to Paragraph 3(A); (ii)
an amount equal to 100% of the recurring pass through charges (e.g.
communication charges) actually utilized by Client during the prior month as
the estimated pass through charges for the Billing Month; (iii) adjustments
(debits/credits) to the prior month's estimated charges set forth in (i) and
(ii) above and; (iv) all other charges incurred by Client during the prior
month. For the projected portion of the invoice, the first Monthly Invoice
shall be based upon BISYS' estimates of usage and shall also include for the
prior month (during which the Conversion Date occurred) a full month's
charges unless the Conversion Date is after the 15th of the prior month, in
which event Client shall be assessed one-half month's charges for the prior
month. Client agrees to pay all amounts set forth in the Monthly Invoice by
automatic debit by BISYS on the last business day of the Billing Month from
a Client bank account established for this purpose (the "Payment Account").
Client agrees to execute any and all required documentation to enable BISYS
to perform such automatic debiting of the Payment Account. If Client fails
to pay any amounts due under this Agreement, Client shall, upon demand, pay
interest at the rate of 1-1/2% per month, but in no event more than the
highest interest rate allowable, on such delinquent amounts from their due
date until the date of payment. Client agrees to reimburse BISYS for any and
all expenses BISYS may incur, including reasonable attorney fees, in taking
action to collect any amounts due BISYS hereunder. All amounts due must be
paid prior to Client's deconversion from the BISYS System.
4. CONVERSION TO THE SERVICES
A. BISYS shall, to the extent applicable, convert machine readable Client Files
to make them compatible with the Services selected by Client from the
Standard Services Price List. Client agrees to cooperate with BISYS and
provide all necessary information and assistance required for BISYS to
successfully convert such Client Files. Client will assign a liaison person
to assist and cooperate with BISYS in such conversion.
B. BISYS shall determine in accordance with its normal acceptance procedures
when the applicable Client Files have been successfully converted and when
the Services selected by Client from the Standard Services Price List are
operational and available for Client's use. The date the first of the
Services selected by Client from the Standard Services Price List is
operational and available for Client's use is the "Conversion Date".
5. AVAILABILITY OF THE SERVICES
A. Hours for accessing Services on an on-line basis ("On-Line Hours") at the
BISYS data center providing Services to Client ("Data Center") are 7:00 A.M.
to 9:00 P.M. Monday through Friday and 7:00 A.M. to 5:00 P.M. Saturday (Data
Center time) exclusive of BISYS holidays (New Years Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day). A
particular Service may also be available at other than On-Line Hours; in
which event Client may, at its option and subject to any additional charges
therefor, use that Service at such other times.
B. BISYS will make every reasonable effort to have the Services available
during the On-Line Hours. However, BISYS cannot and does not guarantee such
availability. Accordingly, Client's remedy and BISYS' sole liability to
Client or any third party for claims, notwithstanding the form of such
claims (e.g., contract, negligence or otherwise), arising out of (i) the
unavailability of the BISYS System or (ii) the interruption in or delay of
the Services provided or to be provided by BISYS hereunder, shall be for
BISYS to use all reasonable efforts to make the BISYS System available
and/or to resume the Services as promptly as reasonably practicable.
C. Client shall, at it's expense, be responsible for delivering and
transmitting to and from Client's offices, the offices of the applicable
regulatory authorities and any other location authorized by Client, and the
Data Center all data and information necessary for BISYS to furnish the
Services to Client.
6. USE OF THE SERVICES
A. Client is exclusively responsible for the consequences of its own actions;
for any instructions it gives BISYS; for its failure to access the Services
in the manner prescribed by BISYS, and for its failure to supply accurate
input information. Client is responsible for auditing, balancing, verifying
the correctness of calculation routines (such as interest and service
charges) and reconciling any out-of-balance condition, and for notifying
BISYS of any errors in the foregoing within three business days after
receipt of the incorrect information. Client's remedy and BISYS' sole
liability to Client or any third party for any claims, notwithstanding the
form of such claims (e.g., contract, negligence or otherwise), arising out
of errors or omissions in the Services provided or to be provided by BISYS
hereunder and caused by BISYS shall be for BISYS to furnish the correct
report and/or to correct the applicable Client Files, provided that Client
promptly advises BISYS thereof.
B. Client shall use the Services in accordance with such reasonable
instructions as may be established by BISYS from time to time as set forth
in any written materials furnished by BISYS to Client.
C. Except as otherwise permitted by BISYS, Client will use the Services only
for its own internal and proper business purposes and will not sell or
otherwise provide, directly or indirectly, any of the Services or any
portion thereof to any third party.
D. Client shall not make any alteration, change or modification to any of the
computer programs, data bases and/or BISYS supported files used by BISYS in
connection with providing the Services to Client hereunder, without BISYS'
prior written consent in each instance.
E. BISYS shall give Client written notice of any BISYS system change which
materially affects Client. Nothing herein shall preclude or limit BISYS'
ability to make changes to its data processing system.
7. COMMUNICATION LINES AND EQUIPMENT.
A. BISYS shall order, on Client's behalf and with Client's approval, the
installation of appropriate telephone lines and communications equipment to
enable Client to access the Services. Client shall pay all charges relating
to the installation and use of such telephone lines and communications
equipment.
B. BISYS shall not be responsible for the reliability, or continued
availability, of telephone lines and communications equipment used by Client
in accessing the Services.
8. FILE SECURITY AND RETENTION.
A. Any Client data bases and files or other information provided by Client to
BISYS for use with the Services (the "Client Files") shall remain the
confidential property of Client. BISYS will provide reasonable security
provisions to insure that third parties do not have access to the Client
Files. BISYS reserves the right to issue and change regulations and
procedures from time to time to improve file security. BISYS will instruct
its employees having access to the Client files to keep the same
confidential by using the same care and discretion that BISYS uses with
respect to its own confidential property.
B. BISYS will take reasonable precautions to prevent the loss of, or alteration
to, Client Files, but BISYS cannot guarantee against any such loss or
alteration. Accordingly, Client will, to the extent deemed necessary by
Client, keep copies of all source documents of information delivered to
BISYS and will maintain a procedure external to the BISYS System for the
reconstruction of lost or altered Client Files. In connection with the
foregoing, it is understood that Client shall assume and be responsible for
risk of loss and/or damage to documents and records while they are in
transit to and from the Data Center.
C. During the term of this Agreement, BISYS will retain the Client Files in
accordance with, and to the extent provided by BISYS' then prevailing
records retention policies for the Services, which policies will be
consistent with guidelines covering the Services established by appropriate
regulatory authorities. BISYS will, upon the expiration of any retention
period for Client Files, dispose of Client Files in any manner deemed
appropriate by BISYS unless Client, prior to such disposal, furnishes to
BISYS written instructions for the disposition of such Client Files at
Client's expense. Client shall pay for the provision of Client Files to
Client at BISYS' standard rates for such services and BISYS shall provide
such Client Files provided that BISYS has been paid for all Services
provided hereunder through the date such requested Client Files are returned
to Client.
D. BISYS has a written Disaster Recovery Plan establishing emergency
procedures, including off-premises backup facility. In connection therewith,
BISYS has prepared a Disaster Recovery Manual. The Disaster Recovery Plan
and Disaster Recovery Manual are available at the Data Center for
examination by bank auditors and examiners and, as they may be modified from
time to time, will remain in existence during the term of this Agreement.
BISYS shall provide Client, upon written request, with information necessary
for Client to develop a disaster contingency plan which will work in concert
with BISYS' Disaster Recovery Plan.
9. DUTIES UPON TERMINATION; RETURN OF RECORDS.
A. Upon the termination of this Agreement for any reason, BISYS will dispose of
all Client Files still in the BISYS System in any manner deemed appropriate
by BISYS unless Client, not later than 30 days after such termination,
furnishes to BISYS written instructions for the disposition of such Client
Files at Client's expense as set forth in Paragraph 9(B).
B. At Client's request as set forth in Paragraph 9(A), BISYS shall deliver to
Client all of the Client Files then retained by BISYS including file layouts
and their descriptions in BISYS format and shall provide in accordance with
BISYS deconversion policies, reasonable and necessary assistance with the
deconversion from the BISYS System to a non-BISYS system ("Deconversion").
Client shall pay BISYS for Deconversion assistance in accordance with BISYS'
then current Deconversion rate schedule. Payment for Deconversion together
with all other payments which are due, and which will become due pursuant to
the provisions of this Agreement shall be paid to BISYS prior to delivery of
such Client Files.
C. Client Files returned to Client shall be in a standard BISYS machine
readable format.
10. OWNERSHIP, USE AND CONFIDENTIALITY; BISYS PRODUCTS AND CONFIDENTIAL
INFORMATION.
A. All computer programs and related documentation made available, directly or
indirectly, by BISYS to Client as part of the Services (the "BISYS
Products") are the exclusive and confidential property of BISYS or the third
parties from whom BISYS has secured the right to use such computer programs
and documentation.
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B. A personal, non-exclusive, non-transferable right and license is being
granted to Client to use, during the term of this Agreement, any
applications software programs included in the BISYS Products (the
"Application Programs") which are delivered to Client as part of the
Services solely for Client's own business usage. Client shall not have any
interest in the Applications Programs except for this limited license.
C. Client shall receive all improvements, enhancements, modifications and
updates to any Applications Programs which are delivered to Client as part
of the Services if, and as, made available by BISYS to its clients
generally. All such improvements, enhancements, modifications and updates
shall be delivered to Client in the form of a computer media, which media
shall be provided to Client by BISYS and shall be installed by Client. If
Client fails to install any such media within 45 days of its receipt from
BISYS, BISYS shall have no further obligation to provide Client with
improvements, enhancements, modifications or updates to such Application
Programs.
D. Client acknowledges that it shall be deemed a sublicensee of BISYS for any
systems software programs included in the BISYS Products (the "Systems
Programs") which are delivered to Client as part of the Services. Client
accepts a sublicense from BISYS of the Systems Programs on a personal,
non-exclusive, non-transferable basis with the right to use, during the term
of this Agreement, such Systems Programs solely in connection with the
Services.
E. Client shall not copy, in whole or in part, any BISYS Products or related
documentation, whether in the form of computer media, printed or in any
other form. Client shall not make any alteration, change or modification to
any BISYS Products.
F. Client shall treat as confidential and will not disclose or otherwise make
available any of the BISYS Products or any trade secrets, processes,
proprietary data, information or documentation related thereto including,
without limitation, any flow charts, logic diagrams or source code
(collectively the "Confidential Information"), in any form, to any person
other than employees of Client. Client will instruct its employees who have
access to the BISYS Products and the Confidential Information to keep the
same confidential by using the same care and discretion that Client uses
with respect to its own confidential property and trade secrets. Upon the
termination of this Agreement for any reason, Client shall return to BISYS
any and all copies of the BISYS Products and the Confidential Information
which are in its possession.
11. GOVERNMENTAL AGENCIES.
A. Client shall provide all required notices to the appropriate regulatory
authorities concerning the initiation or termination of this Agreement, or
of any substantial changes in the Services being provided to Client. BISYS
agrees that any and all Client Files maintained by it for the Client
pursuant to this Agreement shall be available for inspection by the
appropriate regulatory authorities and Client's internal auditors and
independent public accountants, upon prior written notice to BISYS. All
costs incurred by BISYS in the preparation of data for inspection,
examination or audit will be charged to Client at BISYS' then standard rates
for such services.
B. BISYS shall provide annually to the appropriate regulatory authorities any
Third Party Review Reports prepared by independent public accountants with
respect to the Services performed by BISYS at the Data Center and copies of
BISYS' audited financial statements. By entering into this Agreement, BISYS
agrees that it extends to the Office of Thrift Supervision ("OTS") the same
authority and responsibility (as applicable to Client) provided to the other
regulatory agencies pursuant to the Bank Service Corporation Act, 12 U.S.C.
1867(C) relating to services performed by contract or otherwise.
C. If after the date hereof any modifications to the Services shall be required
by law or by any governmental regulatory authority, BISYS shall, except to
the extent such changes may be beyond the capability of the BISYS System to
implement, conform the Services to be in compliance with such modified laws
or governmental regulations. BISYS may, at its discretion, pass on, in whole
or in part, on an equitable basis to all users of the Services (including
Client) affected by any such modification the actual costs incurred by BISYS
in making any such modification to the Services.
12. WARRANTY.
A. BISYS represents and warrants that the Services will conform materially to
their design specifications and user documentation which may be changed from
time to time. This warranty shall not extend to any of the computer
programs, data bases and/or BISYS supported files used by BISYS in
connection with providing the Services to Client hereunder which have been
altered, changed or modified in any way, without BISYS' prior written
consent in each instance.
B. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. LIMITATION OF LIABILITY.
A. The remedies specified in this Agreement constitute Client's sole and
exclusive remedies in the event of any alleged defaults by BISYS under this
Agreement. BISYS' sole liability, if any, for damages (monetary or
otherwise) resulting from claims made by Client or any third party arising
from or related to any and all causes not covered by the foregoing remedies
shall be limited to the lesser of (i) the amount of actual damages incurred
by Client or (ii) an amount which shall not exceed the charges paid by
Client during the six (6) month period immediately preceding the event from
which such liability arose for the Services performed which gave rise to the
claim.
B. IN NO EVENT WILL BISYS BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHICH CLIENT MAY INCUR OR EXPERIENCE ON ACCOUNT OF
ENTERING INTO OR RELYING ON THIS AGREEMENT, EVEN IF BISYS HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
14. PATENT AND COPYRIGHT INDEMNIFICATION.
BISYS will hold Client harmless and, at its own expense, will defend any action
brought against Client based on a claim that the Services used within the scope
of this Agreement infringe a United States patent or copyright provided Client
notifies BISYS promptly in writing of the claim, BISYS has sole control of the
defense of the action and all negotiations for its settlement or compromise, and
Client cooperates with BISYS in the defense of the action. In the event any of
the Services becomes, or in BISYS' opinion is likely to become, the subject of a
claim of infringement of patent or copyright, BISYS, at its option, may (i)
secure for Client the right to continue using such Service(s), (ii) replace or
modify such Services to make it or them non-infringing, (iii) cease providing
the affected Service(s) or (iv) if none of the foregoing options is commercially
reasonable, in BISYS' opinion, terminate this Agreement. If BISYS exercises its
option hereunder to terminate this Agreement, such termination shall be at no
penalty to BISYS except that BISYS shall provide the Deconversion assistance
described in Paragraph 9(B) at no charge to Client.
15. INSURANCE.
BISYS shall maintain, during the term of this Agreement, $10,000,000 of coverage
under a Blanket Crime Policy covering fraudulent and dishonest acts committed by
its employees for which it is legally responsible. BISYS shall maintain, on its
own behalf, insurance coverage for loss from fire, disaster, or other causes
contributing to interruption of normal services. Client, at its own expense,
will maintain all insurance and fidelity bonds required by the applicable
regulatory authorities.
16. DEFAULT; REMEDIES UPON DEFAULT.
A. Any of the following events will constitute an "Event of Default" under the
Agreement: (i) non-payment of any amounts due hereunder to BISYS by Client;
(ii) non-performance of any of Client's or BISYS' other material obligations
hereunder; (iii) if any representation or warranty of Client or BISYS is
materially breached; (iv) if Client or BISYS files a petition for bankruptcy
or becomes the subject of an involuntary bankruptcy petition which is not
vacated within 60 days of filing,
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or becomes insolvent; or (v) if any substantial part of Client's or BISYS'
property becomes subject to any levy, seizure, assignment, application or
sale for or by any creditor or governmental agency.
B. Upon occurrence of an Event of Default under the Agreement, the
non-defaulting party may, at its option, terminate this Agreement provided
at least 30 days (or longer period as may be required by the applicable
regulatory authorities) prior written notice has been given to the other and
such default has not been cured within such period. Upon such termination by
BISYS, BISYS may declare all amounts due and to become due hereunder
immediately due and payable. The remedies contained in this Paragraph 16 are
cumulative and in addition to all other rights and remedies available to the
parties under this Agreement or by operation of law or otherwise.
17. FORCE MAJEURE
BISYS shall not be liable or deemed to be in default for any delay or failure to
perform under this Agreement or for interruption of the Services resulting,
directly or indirectly, from any cause beyond BISYS' reasonable control.
18. GENERAL.
A. BISYS shall provide Client upon written request, copies of The BISYS Group,
Inc.'s (BISYS' parent corporation) current audited financial statements.
B. Client acknowledges that it has not been induced to enter into this
Agreement by any representation or warranty not set forth in this Agreement.
This Agreement contains the entire agreement of the parties with respect to
its subject matter and supersedes all existing agreements and all other
oral, written or other communications between them concerning its subject
matter. This Agreement shall not be modified in any way except by a writing
signed by both parties.
C. The failure by either party hereto to insist upon strict performance of any
of the provisions contained herein shall in no way constitute a waiver of
its rights as set forth herein, at law or equity, or a waiver by either
party of any other provisions or subsequent default by the other party in
the performance of or compliance with any of the terms and conditions set
forth herein.
D. This Agreement may not be assigned by either party, in whole or in part,
without the prior written consent of the other which consent shall not be
unreasonably withheld. It shall not be deemed an assignment requiring
consent if the stock of either is sold, or all, or substantially all, of the
assets are sold so long as such sale does not materially negatively affect
the basis of the financial bargain upon which this Agreement is based as of
the date hereof and such sale does not materially negatively affect the
provision of the Services hereunder. If there is such a negative impact,
then the sale shall be deemed an assignment requiring consent as set forth
above. This Agreement shall be binding upon and shall inure to the benefit
of BISYS and Client and their respective successors and permitted assigns.
E. If any provision of this Agreement (or any portion thereof) shall be held to
be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remainder of this Agreement shall not in any way be
affected or impaired thereby.
F. The headings in this Agreement are intended for convenience of reference and
shall not affect its interpretation.
G. The individuals executing this Agreement on behalf of BISYS and Client do
each hereby represent and warrant that they are duly authorized by all
necessary action to execute this Agreement on behalf of their respective
principals.
H. Client acknowledges that a breach of any of its obligations under this
Agreement relating to the BISYS Products and/or the Confidential Information
will cause BISYS irreparable injury and damage and therefore may be enjoined
through injunctive proceedings in addition to any other rights or remedies
which may be available to BISYS, at law or in equity and BISYS grants Client
the same rights with respect to a breach of BISYS' obligations relating to
the confidentiality of Client Files.
I. During the term of this Agreement, neither party hereto shall, directly or
indirectly, solicit or encourage to leave, any employee of the other without
prior written consent, which consent shall not be unreasonably withheld.
BISYS, INC. FIRST BANK AND TRUST COMPANY
Agreed to: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Agreed to: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(signature-Authorized Officer) (signature-Authorized
Representative)
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(print or type) (print or type)
Date: 3/31/97 Date: 4/1/97
Title: Senior Vice President Title: V.P., Treasurer, CRO
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(print or type) (print or type)
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THIS AGREEMENT SHALL BECOME EFFECTIVE UPON BEING SIGNED BY AUTHORIZED OFFICERS
OF BISYS AND CLIENT. BISYS' MARKETING REPRESENTATIVES DO NOT HAVE THE AUTHORITY
TO BIND BISYS.
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ADDENDUM TO SERVICES AGREEMENT NO. ___________________
SERVICES AGREEMENT DATED AS OF __________________
Reference is made to the above Services Agreement between the undersigned (the
"Agreement") to which this Addendum is attached and made a part thereof.
The Agreement is hereby amended and supplemented as follows:
1. Except as expressly amended and supplemented hereby, all terms defined
in the Agreement shall have the same meanings when used herein.
2. Term of Agreement
2.1 Section 2 of the Agreement is supplemented by inserting the following
new paragraph after Paragraph 2(D):
"E. Client shall have the opportunity to terminate this
Agreement prior to the end of the Initial Period by providing
BISYS with at least 180 days prior written notice not later
than the last day of the fifty-fourth (54th) calendar month
following Conversion Date, and such termination shall be
effective provided that:
1. The effective termination date must occur
during the sixtieth (60th) calendar month
following Conversion Date;
2. Client shall pay BISYS for all Services,
including pass-through charges, provided to
Client through the effective termination
date of this Agreement;
3. Client shall pay BISYS for all Deconversion
assistance in accordance with Paragraph 9(B)
of this Agreement; and
4. All payments must be made prior to delivery
of Client Files.
F. Notwithstanding anything to the contrary contained in
Paragraph 2 of the Agreement, if at any time during the
Initial Period Client is acquired by or merged into (and is
not the surviving entity) a financial organization which does
not have a valid Services Agreement with BISYS, Client shall
have the option to terminate this Agreement prior to the end
of the Initial Period upon at least 180 days prior written
notice to BISYS of its intention to terminate this Agreement
and such termination shall be effective provided that:
1. Client provides written notice of its
intention to terminate this Agreement not
later than 90 days after the receipt of
regulatory approval from the appropriate
government regulatory agency;
2. Client shall pay BISYS an amount based on
the month during which the effective
termination date occurs as follows:
(a) if the effective termination date
occurs prior to the last day of the
fifty-ninth (59th) month following
Conversion Date, then Client pays
BISYS an amount equal to (i)
thirty-six (36) times (ii) the
charges for Services invoiced to
Client for the month immediately
preceding the date of the notice of
termination;
(b) if the effective termination dates
occurs after the last day of the
fifty-ninth 59th) month following
Conversion Date, then Client pays
BISYS twenty-four (24), or if the
number of months remaining in the
Initial Period is less than
twenty-four months then such number
of remaining months, times the
charges for Services invoiced to
Client for the month immediately
preceding the date of the notice of
termination.
3. Client shall pay BISYS for all Services
provided by BISYS through the effective
termination date, including pass-through
charges;
4. Client shall pay BISYS for all Deconversion
assistance in accordance with Paragraph 9(B)
of the Agreement; and
5. All payments must be made prior to delivery
of Client Files.
3. Charges
3.1 Section 3 of the Agreement is supplemented by inserting the
following new paragraphs after Paragraph 3(D):
"E. For purposes of this Agreement and Addendum the following
terms shall have the meanings stated:
"Client Accounts" shall mean deposit and loan accounts on the
BISYS System, including, but not limited to Savings
Accounts-Account Base, Time Deposits/ Certificates of Deposits
Accounts-Account Base, Transaction Accounts-Account Base
(including DDA, MMDA, NOW, SUPER NOW, Money Market), Line of
Credit Accounts- Account Base, Mortgage Loans-Account Base,
Construction Loans-On Line History, Commercial Loans-Account
Base, Installment Loans-Account Base, Adjustable Installment
Loans, Commercial Loan Processing, Construction/Commercial
Loan Control Accounts-Construction Loans,
Construction/Commercial Loan Control Accounts- Commercial
Loans.
"Exhibit A Services" shall mean the Services identified on
attached Exhibit A (both the Standard Services and Special
Services listed on Exhibit A). The parties agree that included
in the definition of Exhibit A Services are Client usage of
any features associated with the Services listed on the
Standard Services portion of Exhibit A which features are in
existence and available to Client as of the date of this
Addendum. Neither features, nor Services, listed on the Price
Lists as of the date hereof, but not set forth on Exhibit A
shall be deemed to be part of the Exhibit A Services and such
other Services and/or features shall be billed to Client in
accordance with the provisions of Paragraph 3(G) below. The
parties also agree that Exhibit A Services are recurring
Services and do not include any installation charges, training
charges, one-time license fees or any other one-time charges.
"One Year Period" shall mean each twelve (12) calendar month
period commencing the first day of the first full calendar
month following the Conversion Date and the indication as to
which twelve (12) month period is indicated will be with the
addition of an ordinal number preceding the term One Year
Period, e.g., First One Year Period, Second One Year Period,
etc.
F. For any and all usage of Exhibit A Services, Client agrees
to pay BISYS each month, a fixed monthly charge (the "Fixed
Monthly Charge") in accordance with the following:
1. On Conversion Date, BISYS will determine the
number of Client Accounts converted to the
BISYS System. During the First One Year
Period, the Fixed Monthly Charge will be
______ Client accounts times $_.__ or
$________. If the number of Client Accounts
is greater than ______, then the Fixed
Monthly Charge during the First One Year
Period will be calculated as (x) $________
plus (y) (the number of Client Accounts in
excess of ______ times $____).
2
2. At the end of each One Year Period, BISYS
will calculate the average number of Client
Accounts on the BISYS System each month
based on the number of Client Accounts on
the BISYS System during the immediately
preceding twelve (12) months (the "Year End
Accounts"). The Fixed Monthly Charge for the
next One Year Period will be calculated in
accordance with the provisions of Paragraph
3(F)(1) above.
G. In addition to the Fixed Monthly Charge for the Exhibit A
Services, Client will pay BISYS each month:
1. For all usage of Services, not specifically
set forth on Exhibit A; and
2. For all pass-through charges.
H. During the first eighteen (18) months of the Initial
Period, BISYS agrees to grant Client a non-cumulative monthly
credit in the amount of $_________ to be applied against the
charges for Services set forth on the Monthly Invoice,
provided, however, in no event will the aggregate amount of
this credit exceed $_________.
I. Despite the provisions of Paragraph 3(B), the charges for
the Standard Services (including the Standard Services set
forth on Exhibit A), will not change during the First, Second
and Third One Year Periods. Commencing on the first day of the
Fourth One Year Period, the charges for the Standard Services
may be changed by a percentage not to exceed
__________________, provided however, that during the
remainder of the Initial Period, in no event will the charges
for the Standard Services be increased in the aggregate by an
amount greater than _________________.
J. BISYS agrees that the one-time installation charges
associated with the Services set forth on Exhibit B will not
be changed during the First One Year Period. Thereafter, these
charges are subject to the increase provisions of Paragraph
3(B) of the Agreement and do not include pass-through charges.
K. BISYS agrees that the monthly recurring charges for the
Special Services listed on Exhibit C represent estimated
monthly recurring charges based on account volumes presented
to BISYS by Client prior to Conversion Date. Accordingly, such
charges may be subject to change after Conversion Date. These
charges will be subject to the price increase provisions of
Paragraph 3(b) of the Agreement.
4. Availability of Services.
4.1 Paragraph 5(A) of the Agreement is amended by inserting the
following language after the last sentence: "During the
Initial Period, BISYS will make available to Client 'memo post
transaction' processing from 7:00 AM to 5:00 PM Sunday,
exclusive of the aforementioned BISYS holidays".
5. BISYS Services/Products Upgrades.
5.1 During the Initial Period, BISYS anticipates that a
Windows(R)-based version of Total Financial Manager (the "TFM
Upgrade") will be made available to BISYS clients.
Accordingly, BISYS agrees that if Client elects to purchase
the TFM Upgrade, BISYS will grant Client a credit against the
one-time implementation charges associated with the TFM
Upgrade provided, however, that Client purchases the TFM
Upgrade not later than six (6) months after the TFM Upgrade
has been made generally available to all BISYS clients. The
credit will be in an amount equivalent to the one-time
implementation charges paid to BISYS by Client for the current
version of TFM.
3
6. Neither BISYS nor Client shall (except to persons acting on behalf of
such party) disclose, and neither party shall permit any of its
employees or other persons who act or acted in its behalf to disclose,
any of the terms and conditions of the Agreement, including without
limitation any Addendum or pricing terms, except as may be required by
law.
Except as expressly amended and supplemented hereby, the Agreement shall remain
unchanged and continue to be in full force and effect.
This Addendum supersedes and replaces any prior agreement (written or oral) as
to its subject matter. If there is any conflict between the terms and conditions
of this Addendum and the terms and conditions of the Agreement or any prior
addendum to this Agreement, the Terms and Conditions of this Addendum shall
prevail.
BISYS, INC. FIRST BANK AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------ --------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------ ------------------------------
Title: Senior Vice President Title: V.P., Treasurer, CFO
--------------------------------- -----------------------------
Date: March 31, 1997 Date: April 1, 1997
---------------------------------- ------------------------------
--------------------------------------------------------------------------------
THIS ADDENDUM SHALL BECOME EFFECTIVE UPON BEING SIGNED BY AN AUTHORIZED OFFICER
OF BISYS. BISYS' MARKETING REPRESENTATIVES DO NOT HAVE THE AUTHORITY TO BIND
BISYS.
--------------------------------------------------------------------------------
4
FIRST BANK AND TRUST COMPANY
EXHIBIT A SERVICES
TRANSACTION ACCOUNT PROCESSING (DDA, MMDA, NOW, COMMERCIAL DDA, SUPERNOW)
Account Processing Check Register on Statement DDA Statement Production
(includes interim statements) Account Analysis Line-of-Credit
Processing Variable Interest Rate Processing
AutomaticData Capture (includes exception item pull, detail record
transmitted, statement rendering file and detail record
transmitted)
Interactive Exception Handling
Item Processing Interface
SAVINGS AND CERTIFICATES OF DEPOSITS
On line History
Retirement Accounts
Statement Production (monthly)
Interest Checks
Variable Interest Rate Processing
OTHER DEPOSIT SERVICES
Anniversary Processing
CD Renewal Confirmation
Electronic Funds Transfer Notification
Combined Statements
Currency Reporting
Additional History Retention
On Line File Maintenance History
Overdraft Remainder Notices
Host Signature Support
Trust/Surrogate/Escrow Minor
Retirement Account Annual Statements
Service Charging
Tenant Rent Security Processing
Account Reconciliation
Sweep Account Processing
ACHIPS
ACHIPS Processing
Return Item Module
Pre-processing Module
Transit Processing Module
MORTGAGE LOANS
Mortgage Loan Preceding
Escrow Analysis
History- One Year
Tax and Insurance System
Adjustable Loans (includes payment/interest adjustment customer
notices)
FIRST BANK & TRUST COMPANY
EXHIBIT A SERVICES (CONT.)
Investor Reporting (includes multi-investor reporting, GNMA/FNMA Pools,
FHLMC MIDANET Remittance Tape (form 308), and Report to Credit
Bureaus)
LASERNET Remittance Tape
Automatic Posting of Mortgage Loan Investor Transactions to GL & DDA
FASB #91
Lock Box Stop Tape Production
Interest on Ecrow Accounting
Mortgage Loan History cards
CONSTRUCTION LOANS (MORTAGE LOAN SYSTEM)
Per construction loan account
Per Monthly interest billling notice
On line History
CONSUMER LOANS PROCESSING
Adjustable Installment Loans (notices)
On line history
Extended on line history for life of loan
▇▇▇▇ & receipt consumer loan accounts
Coupon loans (MICR/OCR tape)
Customer notices and ▇▇▇▇▇▇▇▇ (share loan, maturity, fixed rate,
floating rate, line of credit)
Dealer Reporting and floor planning
Investor Reporting
Multi-investor reporting
Pool reporting
Lock box stop tape production
Student loan processing
FASB # 91
Credit Bureau Reporting Per Tape
Overdraft Loan Notices
Student Loan Check Production
COMMERCIAL LOANS
ACH PROCESSING
Incoming and Outgoing Transaction Processing (does not include TTM or
ACHIPS)
CENTRAL INFORMATION FILE
CIF Account Processing (includes action and collection memos)
GENERAL LEDGER & FINANCIAL
Total Financial Manager General Ledger
Accounts Payable
Fixed Asset Accounting
OTHER
1099, 1098, W-2 Processing
TargetPlus (twenty reports per month)*
Remote Report Printing
*any Client usage of TargetPlus in excess of this number will be
charged to Client at the charges set forth in the Price Lists
FIRST BANK AND TRUST COMPANY
EXHIBIT B
SERVICE ONE-TIME INSTALLATION CHARGE(1)
------- -------------------------------
Conversion Service(2) $
Total Financial Manager Core Package for LAN(2) $
ATM Electronic Funds Transfer Network Interface
for Batch Processing(2) $(3)
TOTALPLUS Information Management System (▇▇▇▇/QM)
including purchase of BISYS recommended hardware(2) $
Terminal Operator Security System (TOSS)(2) $
BISYS Encore Branch Automation Software License
(includes maximum 16 Teller Stations, 12 Platform
Stations and 19 Back-Office Copies)(2) $
Safe Deposit Box Tracking(2) $
ACHIPS - ACH Return Item Processing(2) $
Total Access Banking Voice Response System for 4 line
model, including purchase of BISYS recommended
hardware(2) $
On-Line Debit Card Processing $
Total Sales Manager installation and training fee $
Total Marketing Manager with BISYS Householding
license, installation and training fee $
Total Treasury Manager Autocash Manager license fee for
10 copies of software $
Summit Customer Profitability System Level One LAN software
installation fee $
Commercial Loan Origination $
Total Financial Manager ALBUM (Asset Liability) software
installation charge for LAN $
Telecommunications Services for 5 locations(2) $
(1)These one-time installation charges do not include out-of-pocket travel and
lodging expenses or other pass-through charges incurred by BISYS associated with
the installation of the Services.
(2)This amount represents the initial conversion to the BISYS System and
includes travel and lodging expenses associated with this initial conversion.
(3)If Client elects to utilize BISYS' on-line ATM Services ("On-Line ATM ), this
amount will be applied against the $________ one time charges associated with
On-Line ATM.
FIRST BANK AND TRUST COMPANY
EXHIBIT C
ESTIMATED
MONTHLY FEES
------------
SPECIAL SERVICES
ATM Batch Processing (through Deluxe) $
▇▇▇▇▇/QM Optical System
BISYS Encore Branch Automation (includes 16 Teller,
12 Platform, 19 Back-Office Copies)
Disaster Recovery Assessment
Host Safe Deposit Box Tracking
ACHIPS - ACH Return Item Processing
ReconPlus - Account Reconciliation
Terminal Connection Services (47 Terminals)
OPTIONAL SERVICES
TABS Voice Response $
On Line Debit Card Processing
Commercial Loan Origination
TSM - Sales and Incentive Tracking
TMM - Total Marketing Manager
TTM - Total Treasury Manager (10 Copies)
Customer Profitability
ALBUM - Asset Liability Management
TELECOMMUNICATIONS SERVICES
Frame Relay Wide Area Network with ISDN Dial Backup
Support (5 Locations) $
NOTE: These charges are estimated monthly fees and may be subject to change
if any volumes change after Conversion Date.
