EXHIBIT 10.7
SERVICES AGREEMENT
BISYS, INC. Xxxxxxxx Xx. XX-0000-00-00
00 Xxxxxxxx Xxxxx Price List Xx. 00/00
Xxxxxxx, Xxxxx 00000-0000
Client High Street Banking Company
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Address 000 0xx Xxxxxx, X.X.
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City Hickory State NC Zip Code 28601
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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 sixty (60) 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".
*See Paragraph 2.1 of the Addendum.
5. AVAILABILITY OF THE SERVICES
A. Hours of 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 to claims, nonwithstanding the
form of such claims (e.g., contract, negligence or otherwise), arising
out of (i) the unavailability of the BISYS System of (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 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 corrections 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 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 the 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 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.
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 enjoyed 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. HIGH STREET BANKING COMPANY
Agreed to: /s/ X. X. Xxxxxxx Agreed to: /s/ J. Xxxxx XxXxxxxxx
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(signature - (signature -
Authorized Officer) Authorized Representative)
Name: X. X. Xxxxxxx Name: J. Xxxxx XxXxxxxxx
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(print or type) (print or type)
Title: Sr. V.P. Date: 5/5/97 Title: President Date: 4-30-97
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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 N0. CH-2224-12-91
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 pant 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. Charges.
2.1 Section 3 of the Agreement is amended and 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 112) 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
$3,000.00, provided that on Conversion Date
there are not more than 4,000 Client
Accounts converted to the BISYS System on
Conversion Date. If, however, more than
4,000 Client Accounts are converted, then
the Fixed Monthly Charge for the First One
Year Period will be calculated as (x)
$3,000.00 plus (y) (the number of Client
Accounts in excess of 4,000 times the
appropriate Per Account Fee set forth
below).
2. At the end of each One Year Period, BISYS
will calculate the average number of Client
Accounts on the BISYS System for such One
Year Period by adding the number of Client
Accounts for each month during such One
Year Period and dividing such total by
twelve (12). Such average shall be deemed
the "Year End Accounts". The Fixed Monthly
Charge for the next One Year Period will be
calculated as (x) $3,000.00 for up to 4,000
Client Accounts plus (y) (the number of
Year End Accounts in excess of 4,000 times
the appropriate Per Account Fee set forth
below).
Number of Client Accounts Per Account Fee
4,001 - 10,000 $0.65
10,001 - 15,000 $0.60
15,001 - 20,000 $0.57
20,001 - 30,000 $0.53
Over 30,000 $0.49
3. Paragraph 3(A), Subparagraphs (i), (ii) and
(iii) and Paragraph 3(B) (to the extent of
the Exhibit A Services) are replaced and
superseded with the Fixed Monthly Charge
calculated in accordance with this
Paragraph 3(F).
4. Notwithstanding Paragraph 3(D) of the
Agreement, the Fixed Monthly Charge and any
charges for non-Exhibit A Services utilized
by Client each month shall be billed no
later than the fifth (5th) day of each
month and shall be paid by Client not later
than the last business day of such month.
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 One Year Period, the Per Account Fee will
not be increased Commencing on the first day of the Second
One Year Period, BISYS may increase the Per Account Fee by a
percentage not to exceed four percent (4%) per One Year
Period
2
3.0 Conversion to the Services.
3.1 BISYS' standard conversion services listed on the Special
Services Price List as "Conversion of Standard Applications"
will be provided to Client for $10,000.00. In addition to
such fee, Client agrees to pay all out-of-pocket conversion
related expense not included in BISYS' provided standard
conversion services, including, but not limited to, data
communications and terminal expense. Conversion charges will
be paid fifty percent upon the execution of this Agreement
and fifty percent on Conversion Date.
3.2 Paragraph 4(B) of the Agreement Is amended by deleting the
second sentence of the Paragraph and replacing it with the
following language: "The "Conversion Date " shall be the date
mutually agreed upon by BISYS and Client when all the Exhibit
A Services are operational and available for Client's use."
4.0 Performance Standard .
4.1 Downtime. For purposes of this Agreement, "Downtime" shall
mean any general on-line services interruption (except for
interruption due to reasons beyond BISYS' reasonable control,
including without limitation, destruction of equipment,
communication line failure, fire, acts of God, or acts of
governmental or judicial authority) caused by failure of the
Data Centers computers, programs or operators to sustain
continuous availability of on-line processing during On-Line
Hours. BISYS' Data Center will log and report Downtime
providing appropriate analytical reports to Client for each
calendar month. Client reserves the right to reconcile such
reports with Client's own records of Downtime and correct any
errors. Downtime results will be tabulated daily and averaged
for the calendar month.
(a) BISYS agrees to use all reasonable efforts to work
with Client's existing terminal and micro computer
vendors and with all other organizations who
presently provide telecommunications equipment or
services to Client to make available to Client an
average response time of five (5) seconds and not
greater than twelve (12) seconds for standard teller
requests. (This benchmark for response time shall
not apply to other transactions, including, but not
limited to, fill screen inquiry.) Response time
shall be measured during a period of ten (10)
consecutive business days. Response time shall be
calculated based on the time the teller terminal
messages are transmitted from Client's terminal
equipment to the time BISYS' reply messages are
received by Client's terminal equipment. If the
above described response time is not met during any
measurement period, BISYS and Client shall mutually
agree to resolve this issue.
(b) For every percentage of Downtime in excess of two
(2) percentage points (as a percentage of total
On-Line Hours), during a period of time measured on
a rolling three (3) month average, BISYS will deduct
one percent (1%) of the actual charges for the
Services paid by Client to BISYS for the measured
month to a maximum of five percent (5%). Application
of this credit will be made the following month.
(c) If BISYS experiences Downtime in excess of five (5)
percentage points per month during any two
consecutive calendar months, Client shall have the
option to terminate this Agreement prior to the end
of the Initial Period upon at
3
least 180 days prior written notice to BISYS and
such termination shall be effective, provided that:
(i) Client shall pay BISYS for all Services
provided to Client on the terms provided in
this Addendum, including pass-through
charges, through the effective termination
date; and
(ii) Client shall pay BISYS for all Deconversion
assistance in accordance with Paragraph
9(b) of the Agreement; and
(iii) All payments must be made prior to the
delivery of Client Files.
4.2 Report Delivery. Provided that Client has installed a BISYS
approved Remote Print configuration containing at the minimum
a dedicated 4800 Baud Communication Line to the remote
equipment at Client's location and an 800 LPM Printer, if at
least ninety percent (90%) of the individual daily reports
are not printed and/or stored at Client's print facility by
9:00 A.M. Eastern Time on the business day immediately
following the day as to which such reports relate on at least
ninety percent (90%) of the business days during any calendar
quarter, then the charges for the Services otherwise payable
by Client to BISYS under this Agreement for such calendar
quarter shall be reduced by five percent (5%) and applied as
a credit against charges for the month following such
calendar quarter.
(a) BISYS agrees to use all reasonable efforts to
provide correct report data so as to prevent double
posting. BISYS agrees to monitor service incidents
related to production performance. Service incidents
are defined as:
- Reprint/Rerun (due solely to BISYS' error),
i.e., double posting, incorrect data,
omission, etc.
- Fiche production error
- Report misroute (due solely to BISYS'
error)
- Work request delay (based on mutually
agreed upon delivery date)
- Any Service Incident mutually agreed upon
in writing signed by BISYS and Client
(b) If during any two (2) consecutive calendar month
period, the number of Service Incidents exceeds
seven (7), then 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, and the termination shall be
effective provided that:
(i) Client pays BISYS for all Services provided
through the effective termination date on
the terms provided in this Addendum,
including pass-through charges; and
(ii) Client pays BISYS for any Deconversion
assistance in accordance with Paragraph
9(b); and
(iii) All payments must be made before the
delivery of Client Files.
4.3 For purposes of this Paragraph 4, if the BISYS System is not
available due to reasons beyond BISYS' reasonable control,
including without limitation, destruction of equipment,
communication line failure, fire, acts of God or acts of
governmental or
4
judicial authority then any incident resulting from the
unavailability of the BISYS System for the reasons set forth
In 4.3 shall not be included In the number of Service
Incidents for purposes of determining if Client has the
opportunity to terminate this Agreement in accordance with
Paragraph 4.2(b) above.
5.0 Miscellaneous.
5.1 If during the Initial Period, Client acquires at least five
percent (5%) of the outstanding stock of a financial
institution which does not have a valid services Agreement
with BISYS (the "Acquired Institution"), and Client elects to
have the Acquired Institution utilize BISYS' data processing
services, then BISYS agrees that the Acquired Institution
will be offered at least the same pricing terms and
conditions provided to Client hereunder, provided, however
that the Acquired Institution must execute a separate
Services Agreement with BISYS.
5.2 BISYS agrees that Client shall receive training associated
with the Services selected by Client from the BISYS Price
Lists, In accordance with a conversion plan to be jointly
developed by BISYS and Client after the date of execution of
this Agreement and at the charges set forth in the Price
Lists.
5.3 BISYS agrees that commencing on the date of implementation
/installation of the Services selected by Client hereunder or
from time to time during the Initial Period, BISYS shall
provide support and maintenance as may be requested by Client
from time to time, and such maintenance and support shall be
provided at the charges set forth in this Addendum, any
subsequent addendum or in the Price Lists. BISYS agrees that
the improvements, enhancements, modifications and updates
described in Paragraph 1 O(C) of the Agreement shall be
provided at no additional charge to Client.
5.4 BISYS acknowledges that Client cannot enter into this
Agreement and commence undertaking any of the obligations set
forth herein without (1) the approval of Client's Board of
Directors; and (ii) the approval of Client's application to
the Federal Deposit Insurance Corporation, which is
anticipated by Client on or before May 15, 1997. However, in
order to induce BISYS to commence work related to converting
Client to the BISYS System, Client has executed this
Agreement prior to receipt of the aforementioned approvals.
Upon receipt of notice by Client that it has not received
either of the aforementioned approvals, Client shall
immediately provide BISYS written notice that the approvals
have not been received and therefore Client intends to
terminate this Agreement Immediately. Upon receipt of such
notice from Client, this Agreement shall be deemed terminated
and BISYS shall discontinue any work relating to the
conversion of Client to the BISYS System. Client shall pay
BISYS for all work preformed by BISYS associated with the
conversion of Client of the BISYS System through the date of
termination of this Agreement.
6. Dispute Resolution.
6.1 The parties hereto will attempt in good faith to resolve any
controversy or claim between them arising out of or relating
to this Agreement promptly by negotiation. If a party has a
bona fide dispute, such party Will provide written notice to
the other party. A senior executive of each party shall meet
at a murally agreed upon time and location to attempt to
resolve the matter. If the matter is not resolved by the
parties within sixty days of the delivery of the written
notice, the parties shall finally settle the dispute by
binding arbitration before and under the rules of the
American Arbitration
5
Association in a mutually agreed upon location, provided
however that the location shall not be In North Carolina or
Texas. The dispute shall be arbitrated by a panel of three
neutral arbitrators. Each party shall have the right to
select one of the arbitrators, which arbitrators shall then
select the third arbitrator. Notwithstanding anything to the
contrary the arbitrator is not empowered to award any damages
inconsistent with the terms and conditions of this Agreement.
The arbitration shall proceed as expeditiously as possible.
The cost of the arbitration shall be bome equally by both
parties, provided, however, that each party shall pay its own
attorney, expert and witness fees and expenses, unless
otherwise required by law.
6.0 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. HIGHT STREET BANKING COMPANY
By: /s/ X. X. Xxxxxxx By: /s/ J. Xxxxx XxXxxxxxx
------------------------------------ -------------------------------
Name: X. X. Xxxxxxx Name: J. Xxxxx XxXxxxxxx
---------------------------------- -----------------------------
Title: Senior Vice President Title: President
--------------------------------- ----------------------------
Date: May 5, 1997 Date: 4-30-97
---------------------------------- -----------------------------
-------------------------------------------------------------------------------
THIS ADDENDUM SHALL BECOME EFFECTIVE UPON BEING SIGNED BY AN AUTHORIZED OFFICER
OF RISYS. BISYS' MARKETING REPRESENTATIVES DO NOT HAVE THE AUTHORITY TO RIND
BISYS.
-------------------------------------------------------------------------------
6
HIGH STREET BANKING COMPANY
EXHIBIT A SERVICES
TRANSACTION ACCOUNT PROCESSING (DDA, MMDA, NOW, COMMERCIAL DDA, SUPER NOW)
Account Base
Account Analysis
Check Register on Statement
DDA Statement Production (includes interim statements)
Item Processing Interface
Line-of-Credit Processing
Transaction Base
Variable Interest Rate Processing
On-Line History
SAVINGS, TIME DEPOSITS/CERTIFICATES OF DEPOSITS
Account Base
Interest Checks
On-Line History
Retirement Accounts
Statement Production (statement pages printed at BISYS NOT included)
Variable Interest Rate Processing
ALL DEPOSITS
Combined Statements
Production of Activity Reports
EFT Notices
Over Draft Reminder Notices
Currency Reporting
Account Consolidation Report
Anniversary Processing
Audit Confirmations (once per year)
Bank Check Reconciliation Tape
CD Renewal Confirmation
Proxy Reporting
Realty Trust/Surrogate Processing
Retirement Account Statements
Savings Service Charges
Tenant Rent Security Processing
Tax Compliance - Withholding
W9Bs (mailing label and mailer NOT included)
Account Reconciliation Processing
Item Processing Interface
NSF/UCF Qualification Report
Sweep Accounts
1099, 1099R, 5498 Production (forms charge and rendering charge NOT
included)
Interactive Exception Handling
OTS/FDIC Reports
File Maintenance History
Transaction Processing Notices
HIGH STREET BANKING COMPANY
EXHIBIT A SERVICES
PAGE TWO
COMMERCIAL LOANS
Account Base
INSTALLMENT LOANS
Account Base
Adjustable Installment Loans
Commercial Loan Processing
Coupon Loans MICRIOCR
Customer Notices and Xxxxxxxx
Dealer Reporting and Floor Planning
Investor Reporting
Lock Box - Stop Tape Production
On-Line History (18 months)
Student Loan Processing
Annual IL Notice, Statement
Automatic Student Loan Check Printing
Classification Report
Credit Bureau Reporting (up to 2)
FASB #91 Processing
Loan 10K Report
Overdraft/LOC Loan Notice
Savings Account Loan Trial Balance
Simple Interest Loan Analysis
MORTGAGE LOANS
Account Base
Tax and Insurance System
Coupon Loans MICR/OCR
Escrow Analysis
Adjustable Loans
Xxxx and Receipt Processing
Bi-Weekly/Weekly Loans
Collection Loans
Investor Reporting
Lock Box Stop Tape Production
On-Line History (18 months)
Report to Credit Bureaus
AML Reminder Notice Worksheet .
Annual Mortgage Borrower Statements.
Credit Bureau Reporting - Monthly (up to 2 bureaus)
FASB #91 Processing
FHLMC Form 11 on Magnetic Tape
FHLMC Submission Schedule
Interest on Escrow System
Investor Reporting Tape Production
LASERNET Remittance Tape
Loan Solicitation Tape Production
HIGH STREET BANKING COMPANY
EXHIBIT A SERVICES
PAGE THREE
MORTGAGE LOANS (CONTINUED)
LOAN Solicitations of Printed Forms
Loan 1OK Report
ML Available for Sale Report
Tax Xxxx Processing Tape Production
CONSTRUCTION LOANS
ACCOUNT BASE
Notices
On-Line History (18 months)
ALL LOANS
1098, 1099A, 1099s for OTC Records (forms and rendering NOT included)
1098 Production (forms and rendering NOT included)
Letter Writing
Letter Writing Down Load
File Maintenance History
Multi-Borrower Report
TOTAL FINANCIAL MANAGER
TFM Core Package (LAN)
Per Transaction Fee
AUTOMATIC TRANSACTION GENERATION AND POSTING
From or To ACH
System Generated Transactions
Totalmatic
ACHIPS
CENTRAL INFORMATION FILE (CIF)
Account Base
TARGETPLUS
TargetPlus System
8 Reports per Month*
SAFE DEPOSIT BOX
Base Fee
*Any Client usage of TargetPlus in excess of this number will be charged to
Client at the charges set forth in the Price Lists.
