1
EXHIBIT 10.8
ELECTRONIC DATA PROCESSING AGREEMENT
This Agreement is made and entered into this 12th day of August, 1998 by and
between First Commerce Technologies, Inc, ("FCT"), Lincoln, Nebraska,
hereinafter referred to as Processor, and Southern Community Bancorp,
hereinafter referred to as Client, and supercedes any and all other prior such
Agreements upon the following terms and conditions:
1. SERVICES.
Processor will provide to Client the electronic data processing
services described in attached Addendum A.
2. FEES AND CHARGES.
Client agrees to pay processor, via the ACH network on the fifteenth
day of each month, processing fees as set forth on Addendum B for
services performed the previous month. Processor, at its option, may
impose a charge of 1 1/2% per month on account balances not paid by the
due date. Charges for services performed for the Client by the
Processor which are not specified in Addendum B will be at a price and
upon the terms and conditions agreed to by the parties at the time the
Client requests such services.
In order to adjust for the effects of inflation, after the first twelve
months of this Agreement, and semi-annually thereafter, all fees and
charges reflected in this Agreement will be increased, but not
decreased, based on changes in the Consumer Price Index for All Urban
Consumers - Other Goods and Services (the "CPI-U") as published by the
U.S. Department of Labor, Bureau of Labor Statistics. The first
adjustment to be made at the beginning of the thirteenth month will be
equal to the percent of change over the one-year period for the twelve
consecutive most recent months of information published. This annual
adjustment will not be less than 4% nor more than 8%. Subsequent
semi-annual adjustments will reflect the CPI-U change in each
respective six month period and will not be less than 2% nor more than
4% in any one period.
In addition to the charges described above, Client agrees to pay for
any sales, use, or other tax or charge, levied or assessed upon or as a
result of the performance of any service pursuant to this Agreement or
materials furnished with respect to this Agreement, except taxes based
on Processor's income.
3. TERM.
The original term of this Agreement shall be for a period of five (5)
years beginning on October 1, 1998.
4. INPUT DATA.
2
Client will provide Processor input data in a format acceptable to or
designated by Processor. Input data shall be complete and correct, in a
condition suitable for machine processing and compatible with the data
processing equipment and programs of Processor. If the data submitted
by the Client to the Processor are incorrect, incomplete, or not in the
form designated by Processor, Client will pay processor for any
additional work performed to correct or complete the data.
Processor may rely upon any data, information, or instructions provided
by Client. If any error results from incorrect input supplied by
Client, Client shall be responsible for discovering and reporting such
error and supplying the data necessary to correct such error.
5. DELIVERY SCHEDULE.
Client will deliver input data to the Processor as established by
Addendum C. This schedule will be subject to mutually agreed upon
changes based upon the need and convenience of the Client and the
Processor. The priority for processing Client's data will be
established by Processor in accordance with a policy of providing
reasonable and efficient delivery of services to all Clients.
6. CONTACT REPRESENTATIVE.
Client will designate a qualified individual who will handle all
relations with the Processor. At the time of the conversion, Processor
will train the contact representative in the use of the data processing
system(s).
7. CONVERSION.
At the time of conversion, Processor will balance the computer produced
conversion reports to Client's general books. Client will train other
personnel and new personnel in the use of the data processing system(s)
and to balance each computerized report to the Client's general books.
8. SYSTEM MODIFICATION.
The Processor will notify the Client of changes in the system which
affect procedures or reports and require Client to take action with
respect to such changes. These notifications shall be in the form of
addenda to the User Manual.
9. ELECTRONIC TRANSACTIONS.
Client authorizes Processor to facilitate the origination and receipt
of transactions to and from the National Automated Clearing House
Association (ACH). Client shall comply with all rules, regulations, and
operating procedures of the ACH or its operators as in effect from
time-to-time and shall enter into all agreements required by the ACH or
its operators. All entries into the system shall be under the route
transit identification number of a financial
2
3
institution to be designated by Client and all clearing and settlement
for such entries shall be conducted through such Financial institution
10. LAWS; REGULATIONS.
Client shall be responsible for determining the applicability of all
state and federal laws and regulations including, but not limited to,
laws and regulations governing interest rates, charges, penalties,
disclosures, timing, applicable law and conflict of laws, and to adopt
standards, policies, practices and procedures consistent with such laws
and regulations. Processor assumes no responsibility with respect to
such determinations and expressly limits its obligation to processing
data supplied to Client in accordance with this Agreement.
11. IRS FILING.
Client represents to Processor that it has complied with all laws,
regulations, procedures, and requirements in attempting to secure
correct Tax Identification Numbers (TINs) for Client's payees and
agrees to attest to this compliance by affidavit provided annually.
Client authorizes Processor to act as Client's agent and sign on
Client's behalf any affidavit required by the Internal Revenue Service
with respect to TINs.
Client acknowledges that Processor's execution of IRS Affidavits on
Client's behalf does not relieve Client of responsibility to provide
accurate TINs or liability for any penalties which may be assessed for
failure to comply with TIN requirements.
12. CONFIDENTIALITY.
Processor shall hold in confidence all information received by it in
the course of rendering services designated herein relating to the
Client's assets, liabilities, or the assets, liabilities, business or
affairs of any of the Client's customers. Processor may disclose Client
information pursuant to (1) any law of the United States or any state;
(2) the order of any court or governmental agency; (3) the rules and
regulations of any governmental agency; (4) any subpoena; or (5) any
rule of discovery in connection with any civil or criminal action. Upon
termination Processor shall return to Client all information in its
possession in whatever form held.
13. OWNERSHIP.
All data, documentation, specifications, tapes and programs furnished
by the Client shall remain the property of the Client. Files,
documentation and records developed by the Processor from data
furnished by the Client shall be the property of the Processor and
shall remain the property of the Processor upon termination of this
Agreement. All specifications, tapes, and programs, used or developed
by Processor in connection with this Agreement (except those furnished
by Client) are and shall remain the sole property of Processor.
14. RISK OF LOSS.
3
4
Client will deliver and/or transmit the required input to Processor at
Client's expense and pay the cost of delivery and/or transmission back
to Client. Client will maintain source data and other backup media
sufficient for file and input data recreation in order to mitigate
against the possibility of loss of input data and Client data
maintained by Processor.
Processor will bear the risk of loss with respect to items in its
custody, but only to the extent of the cost to replace or repair the
material on which the items or records are recorded.
Processor will bear no risk of loss for items that are not
machine-readable, including, but not limited to, mutilated currency,
food coupons, bond coupons, credit card merchant receipts, and foreign
checks.
15. CATASTROPHIC LOSS OR MALFUNCTION.
Processor will maintain industry acceptable procedures for emergency
processing in the event of catastrophic hardware loss or malfunction.
16. INSURANCE.
Throughout the term of the agreement, Processor shall maintain
insurance coverage (or shall be self insured) for losses from fire,
disaster, and other causes contributing to interruption of these
services. The proceeds of such insurance shall be payable to Processor.
Nothing in this agreement shall be construed as to permit Client to
receive any of such proceeds, or to be named as an additional loss
payee under any insurance policy.
17. DISCLAIMER OF WARRANTIES.
PROCESSOR DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN, ORAL,
EXPRESSED, OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
18. INDEMNIFICATION.
Except for losses, liabilities, damages, costs or expenses as might be
incurred or to which Processor may be subjected by reason of its own
negligence or willful misconduct, Client agrees to indemnify and hold
the Processor harmless from all loss, liability, costs, damages and
expenses (including reasonable attorney's fees) to which Processor may
be subjected, or which may be incurred in connection with any claim by
third parties which may arise out of or as a result of this Agreement
or the performance by Processor of services hereunder.
19. LIMITATION OF LIABILITY.
4
5
Processor agrees to perform data processing services herein in a
commercially reasonable manner, which is similar to the services
provided by it to its other Clients, and no other or higher degree of
care. In no event shall the Processor, its employees or agents be
liable for any failure or delay in processing due to fire, flood, other
natural catastrophe, the failure of data processing or handling
equipment, strike or other causes beyond Processor's reasonable
control. PROCESSOR, ITS AGENTS OR EMPLOYEES WILL IN NO EVENT BE LIABLE
FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCURRED BY
CLIENT INCLUDING, BUT NOT LIMITED TO, LOSS OF INTEREST, LOSS OF INCOME,
OR LOSS OF BUSINESS OPPORTUNITY REGARDLESS OF WHETHER PROCESSOR WAS
ADVISED OF THE POSSIBLE OCCURRENCE OF SUCH DAMAGES.
20. INFORMATION TO THIRD PARTIES.
Processor will furnish data processing information to such regulatory
authorities, auditors, or examiners or such other parties as requested
by Client in writing. Client will pay any fees incurred for producing
such information.
21. FINANCIAL INFORMATION.
Processor shall, upon available to the Client, upon request, an annual
report on the financial condition of the Processor.
22. AUDIT.
Processor shall, upon request, provide Client one (1) copy of the
report resulting from the third party review by Processor's independent
certified public accountants. Processor shall, upon request, make
available for Client's review a current copy of Processor's Disaster
Recovery Plan. Client (or a Representative of the Client) shall have
the right to perform additional audit procedures on Processor. Client
assumes responsibility for all costs associated with the performance of
Client's additional audit procedures, including expenses incurred by
Processor related to such procedures.
23. CONTINUATION AFTER TERM.
This Agreement shall automatically renew for successive contract terms
equal to the original term, unless written notice is delivered by
either Client or Processor to be other at least nine (9) months prior
to the expiration of the original term hereof or any renewal or
extension thereof.
24. EARLY TERMINATION.
Client may terminate the Agreement before expiration of the original
term of this Agreement, upon satisfaction of each of the following
conditions: (a) Client shall have been acquired by another financial
institution; (b) within six months after it is acquired Client shall
have
5
6
notified Processor in writing of its intention to terminate, with such
notice providing for a termination date not less than one year
thereafter; and (c) Client shall have paid Processor a fee, which shall
accompany the foregoing termination notice, equal to 40% of the
scheduled processing fee which would have been paid from the actual
termination date through the original term of the Agreement. For any
portion of the processing fee which may be volume sensitive as set
forth on Addendum B, the termination charge for such portion shall be
based on the average processing fee assessed for the three (3) calendar
months immediately preceding the month of notice. Client may terminate
the Item Processing Services portion of the Agreement only at any time
after the first year of service with written notification of its
intention to terminate, with such notice providing for a termination
date not less than one year thereafter. Article ( c ) of Paragraph 24
Early termination shall continue to be in effect.
25. DEFAULT.
If Client is in default of any of its obligations hereunder, including
nonpayment of processing fees, Processor may, at its option and in
addition to all other remedies, immediately terminate the Agreement as
to future obligations without further notice.
26. DISPOSITION OF CLIENT DATA.
At the expiration of this Agreement, Processor may dispose of any data
left by Client unless written instructions for disposition, are
received within ten (10) days of the termination date. Client shall pay
any expense incurred and disposing of or transferring the data to
another processor.
27. USER MANUAL.
Processor agrees to provide Client with one copy of the User Manual for
each application. Client agrees to abide by the procedures,
instructions, and conditions set forth in the User's Manual. Processor
may periodically amend and/or update the User's Manual, and will
provide Client with documentation regarding such amendments and
updates.
28. YEAR 2000 STATEMENT.
FCT acknowledges the responsibility for assuring that its active
systems effectively handle Year 2000 conditions. As such, FCT is making
the necessary adjustments to appropriate systems to accommodate the
calendar rollover to the year 2000. In addition, a significant testing
program is being implemented to ensure that our mission critical
applications process Year 2000 dates correctly.
29. MISCELLANEOUS.
6
7
A. ADDENDA All addenda and other schedules or
exhibits attached to or referred to in
this Agreement shall be deemed to be a
part of this Agreement as if fully set
forth.
B. NOTICES All notices required or permitted under
this Agreement shall be given in writing
and shall be deemed given when mailed,
first class, postage prepaid, addressed to
the party at the address set forth in
connection with the party's signature or
such other address as any party shall
provide to the other by notice.
C. USE OF SERVICES Client will use the services provided
under this Agreement only for its own
internal business purposes and will not
sell or otherwise provide, directly or
indirectly, any such services or any
portion thereof to any third party.
D. ENTIRE AGREEMENT This Agreement, together with the Addenda
hereto, constitutes, the entire agreement
between Processor and Client with respect
to the subject matter hereof. There are no
restrictions, promises, warranties,
covenants, or undertakings other than
those expressly set forth herein. This
Agreement supersedes all prior
negotiations, agreements, and undertakings
between the parties with respect to such
subject matter.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date
first above written and have executed the Agreement on the date set forth in
connection with their respective signatures.
FIRST COMMERCE TECHNOLOGIES, INC. SOUTHERN COMMUNITY XXXXXXX
000 X. 00xx Xxxxxx, X.X. Xxx 00000 000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
Signature: /s/ J. XXXXXXX XXXXXXX Signature: /s/ XXXXXXX X. XXXXX
------------------------- ----------------------
Print Name: J. Xxxxxxx Xxxxxxx Print Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President Title: Secretary and CFO
Date: August 17, 1998 Date: August 12, 1998
7
8
ADDENDUM A
This is an Addendum to the Electronic Data Processing Agreement dated August 12,
1998. Processor will provide the following services to client as set forth in
the User's Manual.
STANDARD APPLICATIONS included in the "base fee" on Addendum B:
Demand Deposit Accounting (DDA)
Certificates Of Deposit (CDS)
Individual Retirement Accounting (XXX)
Loan Accounting System (LAS)
General Ledger System (GLS)
Client Services Information (CSI)
Tax Reporting System (TRS)
Funds Transfer System (FTS)
Card Management System (CMS)
Online input and inquiry transactions
ADDITIONAL APPLICATIONS included on Addendum B:
Item Processing Services (Schedule A)
View/Print/Archive Report Software
Call Report Preparation Software
PC Teller Software
Mortgage Loan Accounting (Investor Reporting)
Image Capture and Statement Preparation Services
New Account Platform Software (Loans)
8
9
ACH Origination Software
FCT Safety Deposit Software
FTI Fixed Asset Control
FTI Accounts Payable
MicroSoft Access
FIRST COMMERCE TECHNOLOGIES, INC. SOUTHERN COMMUNITY XXXXXXX
000 X. 00xx Xxxxxx, X.X. Xxx 00000 000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
Signature: /s/ J. XXXXXXX XXXXXXX Signature: /s/ XXXXXXX X. XXXXX
------------------------- ----------------------
Print Name: J. Xxxxxxx Xxxxxxx Print Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President Title: Secretary and CFO
Date: August 17, 1998 Date: August 12, 1998
9
10
ADDENDUM B
This is an Addendum to the Electronic Data Processing Agreement dated August 12,
1998. Processing will be provided as follows:
Data Center Services processing with full on-line input and inquiry
with transmission to Client's facility of all reports, statements, and
special forms.
PROCESSING FEES will be paid by Client to the Processor for the applications
listed on Addendum A.
BASE FEE
The following base monthly processing fee applies to the STANDARD
APPLICATIONS listed on Addendum A.
BASE MONTHLY PROCESSING FEE: $1,260.00
Up to 1,500 accounts Included in Base Fee
1,501 to 10,000 accounts $0.60 per account
Over 10,000 accounts $0.55 per account
All ADDITIONAL APPLICATIONS listed on Addendum A will be charged based
on fees provided in Schedule A or contracted for separately.
ADDITIONAL FEES:
1) Monthly ATM Processing Fees: 1 ATM at $220 Per ATM
The monthly fee for ATM service includes the cost of a modem and
related maintenance and line monitoring, and unlimited transactions and
authorizations.
2) All phone line charges, drops and installation fees. Charges are passed
on to the user bank in relationship to amounts charged by provider, and
may be adjusted periodically.
3) Transportation of data and/or items to and from the data center.
Charges are passed on to the user bank in relationship to the amounts
charged by provider, and may be adjusted periodically.
4) Equipment purchases and maintenance, leased equipment and repairs are
contracted for separately.
5) A one-time conversion fee of $9,000.00 will be assessed for the initial
conversion of applications. This will include initial training of your
employees on the various applications, reports, and on-line systems.
Ongoing training seminars may be attended for the fee as published for
the individual class.
10
11
6) Custom forms may be printed on bank premise at bank expense. In an
In-Bank printing environment, user bank is responsible for all paper
and forms printed in bank. Purchasing of supplies, stock paper,
statements, and special forms may be made through FCT to get quantity
pricing.
7) AD FRADs, modems, modem sharing devices, and converters for telephone
communications are leased and contracted for separately.
8) Item Processing Services (Schedule A).
9) FCT's OnLine System (Online input and inquiry transactions) 10
OnLine PC workstations at $5.00 per workstation per month 1
branch at $2,000.00 per branch (implementation fee)
View/Print/Archive Report Software
FPreports 1 server connect at $25.00 per connect per month
3 viewer access workstations at $3.00 per
workstation per month
10) PC Teller Software
4 PC workstations at $25.00 per workstation per month
1 branch at $3,000.00 per branch (implementation fee)
11) Rembrandt Loan Documentation System(bank asset size less than
$50 Million)
Implementation fee $12,600.00
Monthly fee $300.00
12) Call Report Preparation Software
13) Mortgage Loan Accounting (Investor Reporting)
14) Image Capture and Statement Preparation Services
15) ACH Origination Software
16) FCT Safety Deposit Software
17) Fixed Asset Control
1 license at $90/mo per license
18) FTI Accounts Payable
1 license at $46/mo per license
19) MicroSoft Access
1 license $20/mo per workstation
11
12
The pricing set forth in this Addendum B will be adjusted for increased volume
as reflected above. If through acquisitions, mergers or other means Client
significantly increases the number of accounts, volume of transactions or number
of branches, Processor reserves the right to adjust the monthly processing fee
of this Agreement with mutual agreement of the Client.
FIRST COMMERCE TECHNOLOGIES, INC. SOUTHERN COMMUNITY XXXXXXX
000 X. 00xx Xxxxxx, X.X. Xxx 00000 000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
Signature: /s/ J. XXXXXXX XXXXXXX Signature: /s/ XXXXXXX X. XXXXX
------------------------ -----------------------
Print Name: J. Xxxxxxx Xxxxxxx Print Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President Title: Secretary and CFO
Date: August 17, 1998 Date: August 12, 1998
12
13
ADDENDUM C
This is an Addendum to an Electronic Data Processing Agreement dated August 12,
1998 .
Delivery schedules as of the date of this Addendum are as follows:
Client shall have available for courier pick up all input data to be
delivered to the Orlando Item Processing Center by 5:30 p.m. each day
Monday through Friday.
Processor shall deliver bry courier all output data on or before 8:00
a.m. each day Tuesday through Saturday.
FIRST COMMERCE TECHNOLOGIES, INC. SOUTHERN COMMUNITY XXXXXXX
000 X. 00xx Xxxxxx, X.X. Xxx 00000 000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
Signature: /s/ J. XXXXXXX XXXXXXX Signature: /s/ XXXXXXX X. XXXXX
----------------------- ----------------------
Print Name: J. Xxxxxxx Xxxxxxx Print Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President Title: Secretary and CFO
Date: August 17, 1998 Date: August 12, 1998
13
14
FIRST COMMERCE TECHNOLOGIES, INC.
SCHEDULE A
ITEM PROCESSING SERVICES
FEE SCHEDULE
SERVICE DESCRIPTION UNIT SERVICE FEE
------------------- ---- -----------
ITEM CAPTURE
Inclearing Item Capture..............................Per Item.......................................... $0.010
Proof of Deposit (POD) Item Capture..................Per Item ..........................................$0.015
Transit/Clearing Item Capture & Cash Letter Sort ....Per Item .........................................$0.011
Proof of Dcposit MICR Encoding ......................Per Item ..........................................0.0245
Bulk File/Safekeeping/Item Destruction ..............Per Item .........................................$0.0083
Reject/Re-Entry ...................................Per Item ...........................................$0.05
CHECK ARCHIVAL
Microfilm (Image @ 0.005) ...........................Per Item ..........................................$0.003
Dial up Access (Check, Images) ......................Per Month.........................................$195.00
Check Photocopy .....................................Per Item............................................$0.50
Check Research Services .............................Per Hour ..........................................$23.50
Fax Services ........................................Per Page ...........................................$1.25
RETURN ITEM PROCESSING
Exception Item Pull/Qualification (NSF, Stops, etc.)..Per Item...........................................$0.35
Return Item Cash Letter Prepared......................Per Item ...........................................0.03
STATEMENT RENDERING
Printed Statement.....................................Per Page .........................................$0.105
Truncated Statement DDA & Savings. ...................Per Account........................................$0.10
Image Statement DDA...................................Per Account........................................$0.15
Non-Truncated Statement DDA ..........................Per Account........................................$0.30
Statement Inserts.....................................Per Insert........................................$0.013
OPTIONAL SERVICES
PC Image Software & Setup ............................Per PC.......................................... $750.00
CD-ROM Archival (25,000 iterns per CD) ...............Per CD............................................$25.00
Postage & Pre-Sorting ................................Per Envelope . ..................................At Cost
Courier Services .....................................Per Delivery ....................................At Cost
14
15
DeNovo bank fees for Backroom and Item Processing assume that total items do not
exceed 30,000. Total items include both on-us and over the counter (transit)
items. After total items exceed 30,000, the bank will be accessed per item fees
based on the current published fee schedule, as listed below. Special pricing
for the first 9-month period will be accessed at $1,000.00 per month. In the
10th month and through the 30,000-item tier, the item-processing fee will be
accessed at $1,500.00. Services to include: item capture, amount field encoding,
item pull and qualification, and statement preparation. All items will be
captured on image for research. Any fees for research, photocopies, faxes or
postage will be billed at cost.
FIRST COMMERCE TECHNOLOGIES, INC. SOUTHERN COMMUNITY XXXXXXX
000 X. 00xx Xxxxxx, X.X. Xxx 00000 000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
Signature: /s/ J. XXXXXXX XXXXXXX Signature: /s/ XXXXXXX X. XXXXX
------------------------ ----------------------
Print Name: J. Xxxxxxx Xxxxxxx Print Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President Title: Secretary and CFO
Date: August 17, 1998 Date: August 12, 1998
15
