EXHIBIT 10.12
NOTE: PORTIONS OF THIS EXHIBIT ARE THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST BY THE REGISTRANT TO THE SECURITIES AND EXCHANGE COMMISSION. SUCH
PORTIONS HAVE BEEN REDACTED AND ARE MARKED WITH A "[*]" IN PLACE OF THE REDACTED
LANGUAGE.
REMOTE PROCESSING AGREEMENT
BETWEEN
SUNGARD FINANCIAL SYSTEMS, INC.
A DELAWARE CORPORATION
("SUNGARD")
AND
XXXXXX FINANCIAL SERVICES, INC.
A NORTH CAROLINA CORPORATION
("CUSTOMER")
DATED
7-10-1995
("EFFECTIVE DATE")
By the signatures of their duly authorized representatives below, SunGard and
Customer, intending to be legally bound, agree to all of the provisions of this
Agreement and all Schedules and Addenda to this Agreement.
SUNGARD FINANCIAL SYSTEMS, INC. XXXXXX FINANCIAL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Son
------------------------------- ----------------------------------
Print Name: XXXXX X. XXXXXX Print Name: Xxxxxx X. Son
----------------------- ---------------------------
Print Title: PRESIDENT Print Title: President
-------------------- -------------------------
Dated Signed: 7-13-95 Dated Signed: 7-10-95
-------------------- ------------------------
1. SERVICES
1.1 PROVISION OF SERVICES. SunGard shall provide to Customer, and Customer
shall accept, the on-line processing, report services and related
services described on Schedule A to this Agreement ("System Services")
available through use of SunGard's proprietary applications software
system identified on Schedule A to this Agreement ("System") and the
related documentation listed on Schedule A ("Documentation"), as the
System Services, System and Documentation may be modified, revised and
updated in accordance with this Agreement.
1.2 ON-LINE PROCESSING SERVICES. SunGard shall provide to Customer the
on-line processing services described on Schedule A. The System will be
available to Customer twenty-four hours a day except during System
maintenance. Customer will have on-line access to the System during
every day that any of the United States securities markets are open
("Business Day"). On each Business Day, SunGard will perform a daily
batch cycle which will begin at 8:00 p.m. Eastern Time and takes
approximately twelve (12) hours for normal data processing, unless
additional processing is required by Customer ("Batch Cycle"). During
the Batch Cycle access by Customer to the System is limited to the
inquiry functions and order entry of trades for next Business Day
processing. If Customer requests a delay in the commencement of the
Batch Cycle or if any clearing entities are not available to be
accessed by the System, Batch Processing may be delayed and the System
may not be available for next Business Day processing for approximately
twelve (12) hours after the commencement of the Batch Cycle. The
Designated Location will be staffed at SunGard's usual levels
twenty-four (24) hours a day seven (7) days a week.
1.3 REPORT SERVICES. SunGard shall provide to Customer the report services
described on Schedule A, subject to any advance notification procedures
stated on Schedule A. SunGard shall transmit all reports to Customer in
the manner described in the Documentation.
1.4 CUSTOMER DATA. Customer shall supply to SunGard all of the data to be
processed under this Agreement as described on Schedule A and in the
Documentation. Customer shall transmit the data to SunGard by
communications link or in another manner described on Schedule A.
Customer shall use its best efforts to insure that any information or
data which it introduces into the System is accurate and complete.
Customer shall maintain copies of all source data and current backup
copies of all data supplied to SunGard, and SunGard shall have no
liability for any loss or damage caused by Customer's failure to
maintain copies.
1.5 LIMITED USE. Customer may use the System Services and Documentation
only in the ordinary course of its business operations and for its own
business purposes, including the processing of trades of Customer's
correspondent brokers in its ordinary course of business. Customer
shall use the System Services only in accordance with the
Documentation. Customer may use only the copies of the Documentation
that are provided by SunGard, except that Customer may copy the
SunGard Customer:
1
Documentation to the extent reasonably necessary for routine backup and
disaster recovery purposes.
2. INITIAL IMPLEMENTATION SUPPORT AND TRAINING
2.1 INITIAL IMPLEMENTATION. SunGard shall provide and Customer shall accept
the Initial Implementation Support described on Schedule C. This shall
include delivery to Customer of the Initial Copies of the Documentation
stated on Schedule C and assistance with any other implementation or
related activities described on Schedule C. Subject to the availability
of SunGard's personnel, SunGard shall provide to Customer additional
implementation support services reasonably requested by Customer. After
delivery, Customer shall bear all risk of loss or damage to all copies
of the Documentation delivered by SunGard to Customer. SunGard shall
provide to Customer replacement or additional copies of the
Documentation reasonably requested by Customer.
2.2 TRAINING. SunGard shall provide and Customer shall accept the Minimum
Training described on Schedule C. This shall include basic training in
the use of the System Services for a reasonable number of Customer's
employees. Subject to the availability of SunGard's personnel, SunGard
shall provide to Customer additional training services reasonably
requested by Customer. SunGard shall provide training at Customer's
location(s) whenever SunGard and Customer agree on-site training is
appropriate.
3. SUNGARD'S OTHER OBLIGATIONS
3.1 ONGOING SUPPORT SERVICES. SunGard shall provide the following ongoing
support services to Customer:
(a) TELEPHONE SUPPORT. SunGard shall provide to Customer, during
SunGard's normal business hours, Monday through Friday from
7:30 a.m. Eastern Time to 7:30 p.m. Eastern Time (except that
Customer and SunGard may agree in advance to provide support
services on U.S. holidays), telephone consultative support
through SunGard's Customer Support Department regarding
Customer's proper and authorized use of the Software. During
normal business hours, SunGard shall provide access to at
least one of the following people: (i) the primary support
person for customer account, (ii) the project manager for
customer's account or (iii) a senior manager of SunGard. In
addition, telephone consultive support will be provided
through the SunGard hotline twenty-four (24) hours a day seven
(7) days a week.
(b) ERROR CORRECTIONS. SunGard shall use commercially reasonable
efforts to correct failures of the Software to perform in
accordance with the Documentation ("Errors") as follows:
1. CLASSIFICATION OF ERRORS. An Error shall be
classified in accordance with the following terms:
SunGard Customer:
2
CLASS 1 ERROR. A "Class 1 Error" is any Error that
renders continued use of the Software either
impossible or seriously impractical and either
interrupts production by Customer or makes continued
production substantially costly to Customer.
CLASS 2 ERROR. A "Class 2 Error' is any Error that is
not a Class 1 Error.
2. NOTIFICATION OF ERRORS. SunGard shall provide to
Customer a list of persons (in increasing positions
of authority) and telephone numbers ("Calling List")
for Customer to contact in order to report an error.
When reporting any Error, Customer shall provide the
classification of the Error and reasonably detailed
documentation and explanation, together with
underlying data, to substantiate the Error and to
assist SunGard in its efforts to diagnose and correct
the Error. Customer will immediately report any Class
1 Error. If SunGard detects a Class 1 Error, then
SunGard will immediately contact Customer.
3. RESPONSE TIME. SunGard shall use commercially
reasonable efforts to respond to Customer's initial
Error reports with off-site telephone consultation,
assistance and advice within fifteen (15) minutes for
Class 1 Errors and within one (1) hour for Class 2
Errors, but in any event, SunGard shall respond
within four working hours. If SunGard fails to so
respond, or if the designated person from the Calling
List is not available when Customer makes contact
with SunGard to report an Error, then Customer shall
attempt to contact the next more responsible person
of the Calling List until contact is made and a
designated person responds to the call.
CLASS 1 ERRORS. For any Class 1 Error, SunGard shall
take all reasonably necessary steps to supply a
reasonable work-around or correction to Customer as
soon as possible. This will include assigning
qualified, dedicated staff to work on the Error 24
hours per day, 7 days per week, at either the SunGard
site or Designated Location as necessary. Upon
detecting or being notified of a Class 1 Error,
SunGard shall immediately assemble the appropriate
personnel to analyze the problem, identify potential
solutions and determine the best plan of action.
Customer shall participate in this process when
necessary and provide SunGard with additional
documentation and examples, if possible, to assist in
resolving the Error. SunGard personnel shall be
dedicated to resolving the Error until an acceptable
work-around or correction is supplied or until
Customer determines in its reasonable judgment after
consultation with SunGard that a work around or
correction cannot be produced. A SunGard
representative shall keep Customer informed of the
status.
SunGard Customer:
3
CLASS 2 ERRORS. For any Class 2 Error, SunGard shall
work with Customer to document the Error through
mutually established standards. Class 2 Errors shall
be resolved according to mutually agreed priorities.
SunGard personnel shall be dedicated to resolving
Class 2 Errors through SunGard's normal software
support procedures.
3.2 MODIFICATIONS. SunGard shall provide to Customer, and Customer shall
accept, the following modifications to System Services:
(a) SunGard shall provide modifications, revisions and updates to
the System Services which SunGard, in its sole discretion,
incorporates into the System Services without additional
charge.
(b) SunGard shall use commercially reasonable efforts to develop
and implement changes to the System so that the System
Services will continue to comply with applicable rules and
regulations of regulatory authorities as they may change from
time to time.
(c) At SunGard's option and subject to the availability of SunGard
personnel, SunGard shall evaluate and, if feasible and
appropriate, produce and implement Customer requests for
modifications in the System Services or the System. In
SunGard's sole discretion, it may implement requested
modifications at no charge in accordance with Section 3.1 (a)
or offer them at an additional charge in accordance with
Section 3.4.
(d) SunGard shall deliver updates to the Documentation whenever
SunGard determines, in its sole discretion, that such updates
are necessary.
(e) Customer shall accept modifications, revisions and updates in
the System Services, System and Documentation, including
changes in programming languages, rules of operation and
screen or report format, as and when they are implemented by
SunGard and provided the modifications, revisions or updates
do not have a material adverse effect on the System Services.
Customer acknowledges that modifications, revisions and
updates in the System Services and the System permitted by
this Agreement may result in changes in the form, timing or
other features of on-line services, reports and other System
Services provided under this Agreement.
3.3 ENHANCEMENTS. SunGard shall offer to Customer the opportunity to
purchase services available through use of refinements, improvements
and enhancements to the System which SunGard, in its sole discretion,
does not incorporate into the System without additional charge.
SunGard Customer:
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3.4 CONSULTING AND OTHER SERVICES. At Customer's reasonable request and
subject to the availability of SunGard's personnel, SunGard shall
provide to Customer conversion assistance, consulting services, custom
modification programming, support services relating to custom
modifications, assistance with data transfers, assistance in the use of
the System Services security mechanisms and other specialized support
services with respect to the System Services. These services shall be
provided by SunGard at Customer location(s) if SunGard and Customer
agree that on-site services are appropriate.
3.5 BACKUP COPIES AND DISASTER RECOVERY. SunGard will make a backup copy,
in digital form, of Customer's data files then in SunGard' possession
(i) at the end of each business day and stored at an off-site location
for a period of five (5) business days and (ii) at the end of each
month and saved at an off-site location for a period of the twelve (12)
months, provided that the monthly data files for the first four (4)
months of any tax year will be saved until the fifth month of the
following tax year. SunGard will maintain an agreement for backup
processing services with an affiliated company consisting of the right
to use an installed, fully operational computer system and networking
capability subject to the availability of computer and other hardware.
The backup processing will be performed by SunGard using backup copies
which will be sent to the backup facility. Customer will be charged for
any recovery services associated with any computer hardware or
communications equipment required for Customer or its correspondent
brokers to access the System that is not located at the Designated
Location. In the case of an emergency requiring backup processing,
SunGard will promptly contact the person or persons designated in
writing by Customer to be notified in such circumstance.
3.6 SPECIAL PROCESSING. Upon the request of Customer and subject to the
limitations of the applications and hardware, SunGard will use
commercially reasonable efforts to provide special processing services
such as additional, customized reports or other enhancements that are
not included the processing services provided under this Agreement.
Such special processing services will be provided for an additional
charge agreed upon by Customer and SunGard in writing.
4. CUSTOMER'S OTHER OBLIGATIONS
4.1 ACCESS TO FACILITIES AND EMPLOYEES. Customer shall provide to SunGard
access to the Customer's facilities, equipment and employees, and shall
otherwise cooperate with SunGard, as reasonably necessary for SunGard
to perform its implementation, training, support and other obligations
under this Agreement.
4.2 PROCUREMENT OF HARDWARE AND OTHER ITEMS. Customer shall be responsible,
at its expense, for procuring and maintaining the communications
equipment and lines, computer equipment, software and all other out of
pocket expenses, which comprise the Specified Configuration described
on Schedule A, and for updating the Specified Configuration in
accordance with SunGard's published updates to Schedule A.
SunGard Customer:
5
4.3 NOTICES AND CERTIFICATIONS. Customer shall give written notice to
SunGard (in accordance with Section 9.1) whenever Customer intends to
increase the transaction volume, in any material respect, to be
processed on the System. Customer shall promptly complete and return to
SunGard periodic certifications which SunGard, in its sole discretion,
may from time to time send to Customer, certifying that Customer has
complied and is then in compliance with the provisions of Section 7.
4.4 CERTAIN LEGAL REQUIREMENTS. Customer shall be responsible, at its
expense, for complying with all laws and regulations of any
jurisdiction applicable to use of System Services, including laws and
regulations pertaining to (a) remote use of software and related
property, (b) communication or transmission of data into or out of a
jurisdiction or (c) registration of this Agreement. Customer shall
indemnify and hold harmless SunGard (and its affiliates, and the
respective directors, officers, employees and agents of SunGard and its
affiliates) from and against all actions, claims, damages or
liabilities (including reasonable attorneys' fees) arising out of any
violation by Customer of any such laws or regulations.
5. PAYMENTS
5.1 INITIAL IMPLEMENTATION SUPPORT AND MINIMUM TRAINING. Customer shall pay
to SunGard the fees for Initial Implementation Support and Minimum
Training in the amounts stated on Schedule C, in accordance with the
payment terms stated on Schedule C.
5.2 MONTHLY FEES. On a monthly basis, beginning on the first day of
processing live trades on the System ("Effective Date") and continuing
until termination of this Agreement. Customer shall pay to SunGard the
fees described on Schedule C. Customer shall pay minimum monthly fees
for certain services as stated on Schedule C.
5.3 SPECIAL SERVICE FEES. Customer shall pay to SunGard the service fees
stated on Schedule C for conversion, consulting services, custom
modification programming, support services relating to custom
modifications, assistance with data transfers, and other specialized
support services under Sections 3.4. In each case where service fees
are not specified on Schedule C, then the fees for such services shall
be based upon SunGard's standard professional fee rates. SunGard's
standard professional fee rates in effect on the date of this Agreement
are stated on Schedule C and are subject to increase in the ordinary
course of business.
5.4 EXPENSE REIMBURSEMENTS. Customer shall be responsible for all
out-of-pocket expenses expenses incurred by SunGard. Whenever any
services are provided by SunGard at a Customer location or any other
location requested by Customer other than one of SunGard's locations,
Customer shall reimburse SunGard for its reasonable travel, lodging,
meal and related expenses incurred by SunGard personnel in providing
such services.
SunGard Customer:
6
5.5 OTHER FEES. If Customer requires replacement or additional copies of
the Documentation, then Customer shall pay to SunGard the corresponding
fees stated on Schedule C.
5.6 TAXES. The fees and other amounts payable by Customer to SunGard under
this Agreement do not include any taxes of any jurisdiction that may be
assessed or imposed upon the services provided under this Agreement or
the copies of the Documentation provided to Customer, including sales,
use, excise, value added, personal property, export, import and
withholding taxes, excluding only taxes based upon SunGard's net
income. Customer shall directly pay any such taxes assessed against it,
and Customer shall promptly reimburse SunGard for any such taxes
payable or collectable by SunGard.
5.7 PAYMENT TERMS. SunGard shall submit invoices to Customer on a monthly
basis for monthly fees and routine expense reimbursements. SunGard
shall submit invoices to Customer for any other fees or expense
reimbursements as and when incurred. All invoices shall be sent to
Customer's address for invoices stated on Schedule A. Customer's
payments shall be due within thirty (30) days after receipt of Invoice.
Interest at the rate of eighteen percent (18%) per annum (or, if lower,
the maximum rate permitted by applicable law) shall accrue on any
amount not paid by Customer to SunGard when due under this Agreement,
and shall be payable by Customer to SunGard on demand unless subject to
a good faith dispute. Except as provided in Sections 6.1 and 6.2(c),
all fees and other amounts paid by Customer under this Agreement are
non-refundable, unless subject to a good faith dispute.
5.8 FEE INCREASES. Beginning on the first day of the sixth (6th) year of
processing of live trades and on an annual basis, by giving at least
one hundred and twenty (120) days advance written notice to Customer
(in accordance with Section 9.1), SunGard may increase the fees payable
under this Agreement.
6. WARRANTIES AND LIMITATIONS
6.1 PERFORMANCE. SunGard shall use reasonable care in processing all work
transmitted to it by Customer. SunGard shall have no liability under
this Section 6.1 unless, within thirty (30) days after the applicable
date of service, SunGard receives notice from Customer (in accordance
with Section 9.1) describing a material processing error caused by
SunGard's failure to use reasonable care, together with adequate
supporting documentation and data. Upon receipt of any such notice,
SunGard's only obligation under this Section 6.1 is to correct the
error and redo the work affected as soon as reasonably practical at no
additional charge, or, at SunGard's option, to refund or credit the
charges applicable to the work affected.
6.2 RIGHT TO PERFORM SERVICES; NO INFRINGEMENT. SunGard warrants to
Customer that it has the full legal right to use the System to provide
the System Services in accordance with this Agreement, and that the
System Services and
SunGard Customer:
7
Documentation, in the form delivered to Customer by SunGard and when
properly used for the purpose and in the manner specifically authorized
by this Agreement, do not infringe in any material respect upon any
United States patent or copyright or any trade secret or other
proprietary right of any person. SunGard shall reimburse Customer for
any damages finally awarded against and paid by Customer to the extent
attributable to a violation of the foregoing warranty. SunGard shall
have no liability under this Section 6.2 unless Customer gives written
notice to SunGard (in accordance with Section 9.1) within ten (10) days
after any applicable infringement claim is initiated against Customer
and allows SunGard to have sole control of the defense or settlement of
the claim. If any applicable infringement claim is initiated, or in
SunGard's sole opinion is likely to be initiated, against Customer or
SunGard, then SunGard shall have the option, at its expense, to:
(a) modify or replace all or the infringing part of the System
Services, System or Documentation so that it is no longer
infringing, provided that the System Services do not change in
any material adverse respect; or
(b) procure the right to continue using or providing the
infringing part of the System Services, System or
Documentation; or
(c) remove all or the infringing part of the System Services,
System or Documentation, and refund to Customer the
corresponding portion of any monthly fee paid in advance, in
which case this Agreement shall terminate with respect to the
affected System Services.
6.3 CARE OF DATA. SunGard shall use commercially reasonable care in
handling tapes or other materials which encode or contain data
belonging to Customer. SunGard's only obligation for breach of this
Section 6.3 shall be to replace or repair the tape or material lost or
damaged and to make commercially reasonable efforts to regenerate any
lost data from backup copies maintained by SunGard or from source data
provided by Customer.
6.4 APPLICATION OF DATA. SunGard shall have no liability for any loss or
damage resulting from any application of the results obtained from the
use of any services provided under this Agreement or from any
unintended or unforeseen results obtained from the use of any services
provided under this Agreement.
6.5 EXCLUSION FOR UNAUTHORIZED ACTIONS. SunGard shall have no liability
under any provision of this Agreement with respect to any performance
problem, claim of infringement or other matter to the extent
attributable to any unauthorized or improper use or modification of the
System, any unauthorized combination of the System with other software
(other than software included in the Specified Configuration), or any
breach of this Agreement by Customer.
6.6 FORCE MAJEURE. SunGard shall not be liable for, nor shall SunGard be
considered in breach of this Agreement due to, any failure to perform
its obligations under
SunGard Customer:
8
this Agreement as a result of a cause beyond its control, including any
act of God or a public enemy, act of any military, civil or regulatory
authority, change in any law or regulation, fire, flood, earthquake,
storm or other like event, disruption or outage of communications,
power or other utility, labor problem, unavailability of supplies, or
any other cause, whether similar or dissimilar to any of the foregoing,
which could not have been prevented by SunGard with reasonable care.
Customer acknowledges that availability of System Services is subject
to normal System downtime and that SunGard is not responsible for
delays or inability to access services caused by communications
problems.
6.7 DISCLAIMER AND EXCLUSIONS. EXCEPT AS EXPRESSLY STATED IN THIS
AGREEMENT, SUNGARD MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR
WRITTEN, EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE
SYSTEM, THE SYSTEM SERVICES OR ANY OTHER MATTER PERTAINING TO THIS
AGREEMENT. EXCEPT FOR DAMAGES REIMBURSABLE UNDER SECTION 6.2, SUNGARD'S
TOTAL LIABILITY UNDER THIS AGREEMENT SHALL UNDER NO CIRCUMSTANCES
EXCEED AN AMOUNT EQUAL TO FIVE HUNDRED THOUSAND DOLLARS ($500,000).
UNDER NO CIRCUMSTANCES SHALL SUNGARD BE LIABLE TO CUSTOMER OR ANY OTHER
PERSON FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, OR ANY
INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER OR NOT
FORESEEABLE.
6.8 OTHER LIMITATIONS. The warranties made by SunGard in this Agreement,
and the obligations of SunGard under this Agreement, run only to
Customer and not to its affiliates, its customers or any other persons.
Under no circumstances shall any other person be considered a third
party beneficiary of this Agreement or otherwise entitled to any rights
or remedies under this Agreement. Customer shall have no rights or
remedies against SunGard except as specifically provided in this
Agreement. No action or claim of any type relating to this Agreement
may be brought or made by Customer more than one (1) year after
Customer first has knowledge of the basis for the action or claim.
7. CONFIDENTIALITY, OWNERSHIP AND RESTRICTIVE COVENANTS
7.1 CONFIDENTIAL INFORMATION. All business information disclosed by one
party to the other in connection with this Agreement shall be treated
as confidential information unless it is or later becomes publicly
available through no fault of the other party or it was or later is
rightfully developed or obtained by the other party from independent
sources free from any duty of confidentiality. Each party's
confidential information shall be held in strict confidence by the
other party, using the same standard of care as it uses to protect its
own confidential information, and shall not be used or disclosed by the
other party for any purpose except as necessary to implement or perform
this Agreement, or except as required by law
SunGard Customer:
9
provided that the other party is given a reasonable opportunity to
obtain a protective order. Without limiting the generality of the
foregoing, such confidential information shall include Customer's data,
reports generated by SunGard from Customer's data and the details of
Customer's computer operations.
7.2 SUNGARD'S PROPRIETARY ITEMS. Customer acknowledges that the System and
Documentation, the object code and the source code for the System, the
name of the System, the visual expressions, screen formats, report
formats and other design features of the System, all ideas, methods,
algorithms, formulae and concepts used in developing and/or
incorporated into the System or Documentation, all future
modifications, revisions, updates, releases, refinements, improvements
and enhancements of the System or Documentation, all derivative works
based upon any of the foregoing, and all copies of the foregoing
(referred to, collectively, as "Proprietary Items") are trade secrets
and proprietary property of SunGard, having great commercial value to
SunGard. Customer acknowledges that the restrictions in this Agreement
are reasonable and necessary to protect SunGard's legitimate business
interests.
7.3 OWNERSHIP RIGHTS. All Proprietary Items provided to Customer under this
Agreement are being provided on a strictly confidential and limited use
basis. Title to all Proprietary Items and all related patent,
copyright, trademark, service xxxx, trade secret, intellectual property
and other ownership rights shall remain exclusively with SunGard, even
with respect to such items that were created by SunGard specifically
for or on behalf of Customer. This Agreement is not an agreement of
sale, and no title, patent, copyright, trademark, service xxxx, trade
secret, intellectual property or other ownership rights to any
Proprietary Items are transferred to Customer by virtue of this
Agreement. All copies of Proprietary Items in Customer's possession
shall remain the exclusive property of SunGard and shall be deemed to
be on loan to Customer during the term of this Agreement.
7.4 DISCLOSURE RESTRICTIONS. All Proprietary Items in Customer's
possession, whether or not authorized, shall be held in strict
confidence by Customer, and Customer shall take all steps reasonably
necessary to preserve the confidentiality thereof. Customer shall not,
directly or indirectly, communicate, publish, display, loan, give or
otherwise disclose any Proprietary Item to any person, or permit any
person to have access to or possession of any Proprietary Item.
Customer shall limit its use of and access to Proprietary Items to only
those of its employees whose responsibilities require such use or
access. Customer shall advise all such employees, before they receive
access to or possession of any Proprietary Items, of the confidential
nature of the Proprietary Items and require them to abide by the terms
of this Agreement. Customer shall be liable for any breach of this
Agreement by any of its employees or any other person who obtains
access to or possession of any Proprietary Item from or through
Customer.
7.5 USE RESTRICTIONS. Customer shall not do, nor shall it permit any other
person to do, any of the following:
SunGard Customer:
10
(a) use any Proprietary Item for any purpose, at any location or
in any manner not specifically authorized by this Agreement;
or
(b) make or retain any copy of any Proprietary Item except as
specifically authorized by this Agreement; or
(c) create or recreate the source code for the System, or
re-engineer, reverse engineer, decompile or disassemble the
System; or
(d) modify, adapt, translate or create derivative works based upon
the System or Documentation, or combine or merge any part of
the System or Documentation with or into any other software or
documentation; or
(e) refer to or otherwise use any Proprietary Item as part of any
effort to develop a program having any functional attributes,
visual expressions or other features similar to those of the
System or to compete with SunGard; or
(f) remove, erase or tamper with any copyright or other
proprietary notice printed or stamped on, affixed to, or
encoded or recorded in any Proprietary Item, or fail to
preserve all copyright and other proprietary notices in any
copy of any Proprietary Item made by Customer; or
(g) sell, market, license, sublicense, distribute or otherwise
grant to any person, including any outsourcer, vendor,
consultant or partner, any right to use any Proprietary Item,
whether on Customer's behalf or otherwise; or
(h) use the System to conduct any type of service bureau or
timesharing operation or to provide remote processing, network
processing, network communications or similar services to any
person, whether on a fee basis or otherwise; or
(i) attempt to do any of the foregoing.
7.6 NOTICE AND REMEDY OF BREACHES. Customer shall promptly give written
notice to SunGard (in accordance with Section 9.1) of any actual or
suspected breach by Customer of any of the provisions of this Section
7, whether or not intentional, and Customer shall, at its expense, take
all steps reasonably requested by SunGard to prevent or remedy the
breach.
7.7 AUDIT. SunGard may, at its expense and by giving reasonable advance
written notice to Customer (in accordance with Section 9.1), enter
Customer locations during normal business hours and audit the number of
copies of the Documentation in Customer's possession and information
pertaining to Customer's compliance with the provisions of this Section
7. If SunGard discovers that Customer is not in compliance with the
provisions of this Section 7
SunGard Customer:
11
in any material respect, then Customer shall reimburse SunGard for the
expenses incurred by SunGard in conducting the audit.
7.8 ENFORCEMENT. Customer acknowledges that any breach of any of the
provisions of this Section 7 shall result in irreparable injury to
SunGard for which money damages could not adequately compensate. If
there is a breach, then SunGard shall be entitled, in addition to all
other rights and remedies which SunGard may have at law or in equity,
to have a decree of specific performance or an injunction issued by any
competent court, requiring the breach to be cured or enjoining all
persons involved from continuing the breach. The existence of any claim
or cause of action which Customer or any other person may have against
SunGard shall not constitute a defense or bar to the enforcement of any
of the provisions of this Section 7.
7.9 DOCUMENTATION FOR CORRESPONDENTS. Notwithstanding the disclosure and
use restrictions set forth herein, Customer may copy and provide to its
correspondent brokers those portions of the Documentation pertaining to
the proper use of the System by Customer's correspondent brokers (e.g,
portions pertaining to trade input, data inquiries or report
generation), provided that (a) no Documentation shall be provided to
any correspondent broker of Customer unless and until such
correspondent broker signs a fully disclosed clearing agreement or
similar contract with Customer which requires the correspondent broker
to preserve the confidentiality of such Documentation, (b) any such
Documentation provided to any correspondent broker of Customer shall be
accompanied by a cover page identifying it as proprietary property of
SunGard Financial Systems Inc., and stating that it is subject to
Customer's contractual obligations to preserve the confidentiality
thereof, and (c) no modifications shall be made to the Documentation
provided to any correspondent broker of Customer without SunGard's
express prior written consent.
8. TERMINATION
8.1 INITIAL TERM; RENEWAL. The term of this Agreement begins on the
Effective Date stated on the first page of this Agreement and shall
continue for five (5) years, and thereafter for successive one-year
renewal terms unless and until terminated in accordance with this
Section 8 or any other section of this Agreement. SunGard or Customer
may terminate this Agreement at the end of the Initial Term or at the
end of any one-year renewal term by giving at least ninety (90) days
advance written notice of termination (in accordance with Section 9.1)
to the other.
8.2 TERMINATION BY CUSTOMER.
(a) Customer may terminate this Agreement immediately upon notice
to SunGard (in accordance with Section 9.1) if SunGard
improperly denies Customer access to the System Services and
Customer's files maintained in the System for more than one
(1) business day, or if SunGard fails to provide to Customer
any daily reports described on Schedule A for more
SunGard Customer:
12
than two (2) consecutive business days, in either case unless
due to a hardware or software malfunction or defect, in which
case SunGard shall be allowed a reasonable period of time to
correct the malfunction or defect.
(b) After the first two years of the Agreement, the Company may
terminate the Agreement upon at least six months notice if the
Company permanently discontinues its correspondent clearing
business and in no way provides correspondent clearing
services.
8.3 TERMINATION BY SUNGARD. SunGard may immediately terminate this
Agreement, by giving written notice of termination to Customer (in
accordance with Section 9.1), upon the occurrence of any of the
following events:
(a) Customer fails to pay to SunGard, within ten (10) days after
SunGard makes written demand therefor, any past-due amount
payable under this Agreement including interest thereon) that
is not the subject of a good faith dispute as to which
Customer has given written notice to SunGard (in accordance
with Section 9.1) explaining its position in reasonable
detail.
(b) Customer breaches, in any material respect, any of the
provisions of Section 7 or Section 9.3.
(c) Customer breaches any of its other obligations under this
Agreement and does not cure the breach within thirty (30) days
after SunGard gives written notice to Customer (in accordance
with Section 9.1) describing the breach in reasonable detail.
(d) Bankruptcy, insolvency, dissolution or liquidation proceedings
of any nature are instituted by or against Customer or
Customer discontinues all or a significant part of its
business operations.
8.4 SUSPENSION OF SERVICES. On the occurrence of any event which would
permit SunGard to terminate this Agreement under Section 8.3, in
addition to all other rights and remedies which SunGard may have at law
or in equity, SunGard may, without terminating this Agreement, and in
its sole discretion and without further notice to Customer, suspend
performance of any or all of its services under this Agreement and/or
activate internal controls in the System that are designed to deny
Customer access to the System Services and files, until and unless
SunGard determines, in its sole discretion and upon whatever conditions
SunGard chooses to impose on Customer, to resume performance of some or
all of the suspended services or allow Customer access to the System
Services and files.
8.5 EFFECT OF TERMINATION. Upon a termination of this Agreement, whether
under this Section 8 or otherwise, Customer shall immediately cease all
use of the System Services, Documentation and other Proprietary Items,
Customer shall promptly return to SunGard all copies of the
Documentation and any other Proprietary Items then in Customer's
possession. Customer shall remain liable for all
SunGard Customer:
13
payments due to SunGard with respect to the period ending on the date
of termination. Within thirty (30) days after termination of this
Agreement, Customer shall give notice to SunGard (in accordance with
Section 9.1) containing reasonable instructions regarding the
disposition of tapes, data, files and other property belonging to
Customer and then in SunGard's possession. SunGard shall comply with
that notice, except that SunGard may retain all such property until
SunGard receives all payments due to SunGard under this Agreement. Upon
request contained in such notice, SunGard shall convert Customer's data
to machine readable form to the extent practicable and at Customer's
expense. If Customer fails to give that notice within thirty (30) days
after termination of this Agreement, then SunGard may dispose of such
property as it sees fit. The provisions of Sections 5, 6 and 7 shall
survive any termination of this Agreement, whether under this Section 8
or otherwise.
9. OTHER PROVISIONS
9.1 NOTICE. All notices, consents and other communications under or
regarding this Agreement shall be in writing and shall be deemed to
have been received on the earlier of the date of actual receipt, the
third business day after being mailed by first class certified air
mail, or the first business day after being sent by a reputable
overnight delivery service. Any notice may be given by facsimile,
provided that signed written original is sent by one of the foregoing
methods within twenty-four (24) hours thereafter. Customer's address
for notices is stated on Schedule A. SunGard's address for notices is
000 Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 Attention: Contract
Administration. Either party may change its address for notices by
giving written notice of the new address to the other party in
accordance with this Section 9.1.
9.2 Defined Terms. As used in this Agreement, the following terms have the
following meanings:
(a) "affiliate" means, with respect to a specified person, any
person which directly or indirectly controls, is controlled
by, or is under common control with the specified person as of
the date of this Agreement, for as long as such relationship
remains in effect.
(b) "copy" means any paper, disk, tape, film, memory device, or
other material or object on or in which any words, object
code, source code or other symbols are written, recorded or
encoded, whether permanent or transitory.
(c) "including" means including but not limited to.
(d) "person" means any individual, sole proprietorship, joint
venture, partnership, corporation, company, firm, bank,
association, cooperative, trust, estate, government,
governmental agency, regulatory authority, or other entity of
any nature.
SunGard Customer:
14
9.3 PARTIES IN INTEREST. This Agreement shall bind, benefit and be
enforceable by and against SunGard and Customer and, to the extent
permitted hereby, their respective successors and assigns. Customer
shall not assign this Agreement or any of its rights hereunder, nor
delegate any of its obligations hereunder, without SunGard's prior
written consent. SunGard's consent shall not be unreasonably withheld
in the case of an assignment to a purchaser of or a successor to
substantially all of Customer's business, or to an affiliate of
Customer, provided that SunGard receives prior notice (in accordance
with Section 9.1) of the assignment together with the successor's
written undertaking to assume all of Customer's obligations under this
Agreement. Any change in control of Customer, and any assignment by
merger or otherwise by operation of law, shall constitute an assignment
of this Agreement by Customer for purposes of this Section 9.3.
9.4 RELATIONSHIP. The relationship between the parties created by this
Agreement is that of independent contractors and not partners, joint
venturers or agents.
9.5 ENTIRE UNDERSTANDING. This Agreement, which includes and incorporates
the Schedules referred to herein, states the entire understanding
between the parties with respect to its subject matter, and supersedes
all prior proposals, marketing materials, negotiations and other
written or oral communications between the parties with respect to the
subject matter of this Agreement. Any written, printed or other
materials which SunGard provides to Customer that are not included in
the Documentation are provided on an "as is" basis, without warranty,
and solely as an accommodation to Customer.
9.6 MODIFICATION AND WAIVER. No modification of this Agreement, and no
waiver of any breach of this Agreement, shall be effective unless in
writing and signed by an authorized representative of the party against
whom enforcement is sought. No waiver of any breach of this Agreement,
and no course of dealing between the parties, shall be construed as a
waiver of any subsequent breach of this Agreement.
9.7 SEVERABILITY. A determination that any provision of this Agreement is
invalid or unenforceable shall not affect the other provisions of this
Agreement.
9.8 HEADINGS. Section headings are for convenience of reference only and
shall not affect the interpretation of this Agreement.
9.9 JURISDICTION AND PROCESS. In any action relating to this Agreement, (a)
each of the parties irrevocably consents to the exclusive jurisdiction
and venue of the federal and state courts located in the Commonwealth
of Pennsylvania, (b) each of the parties irrevocably waives the right
to trial by jury, (c) each of the parties irrevocably consents to
service of process by first class certified mail, return receipt
requested, postage prepaid, to the address at which the party is to
receive notice in accordance with Section 9.1, and (d) the prevailing
party shall be
SunGard Customer:
15
entitled to recover its reasonable attorney's fees (including, if
applicable, charges for in-house counsel), court costs and other legal
expenses from the other party.
9.10 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA EXCLUDING
CHOICE OF LAW.
SunGard Customer:
16
SCHEDULE C1 CONT
TO REMOTE PROCESSING AGREEMENT
DATED SEPTEMBER 13, 1996
--------------------------------------------------------------------------------
SERVICE FEES
--------------------------------------------------------------------------------
2. The above charges include the following:
a. All reports and functionality as outlined in the Users Manual except:
1. Retail Portfolio System
2. Safekeeping System
3. Investment Portfolio
3. The Retail Portfolio Appraisal System fees are as follows:
a. *** per account per month
b. $5,000.00 monthly minimum
4. Items not included in trade/cancel charge:
Programming or Custom Reports Quote
ENFORMS Quote
Additional sets of User Manuals $150.00 per copy
Labels/3x5 cards
0 - 2,000 min. $100.00 $.15 per item
2,001 - 10,000 min. $300.00 $.06 per item
10,001-+ $.04 per item
Muni Bond Pricing ***
Communication Boards, lines, Modems, etc. Cost
Equipment Quote
Tapes Cost
Microfiche - original frame $2.00
- per copy $.10
IRS Year-End Processing Cost + 10 %
----------
*** Certain information on this page has been omitted and filed separately with
the Commission pursuant to a request for Confidential Treatment.
Customer's Name: Xxxxxx Financial Services, Inc. SunGard Customer:
SCHEDULE A
TO REMOTE PROCESSING AGREEMENT
DATED 7-10, 1995
--------------------------------------------------------------------------------
SOFTWARE AND RELATED INFORMATION
--------------------------------------------------------------------------------
SOFTWARE: PHASE3 System
DOCUMENTATION: PHASE3 Reference Manuals
PHASE3 Report Manuals
SPECIFIED
CONFIGURATION: Not applicable
ADDRESS FOR INVOICES: 000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000
-----------------------------------------------------
ADDRESS FOR NOTICES: 000 Xxxxx Xxxxxxx, Xxxxx 000. Xxxxxx, XX 00000
-----------------------------------------------------
Customer's Name: Xxxxxx Financial Services, Inc. SunGard Customer:
SCHEDULE C1
TO REMOTE PROCESSING AGREEMENT DATED
SERVICE FEES
1. For purposes of this Agreement, the cost per trade will be as noted below.
Activity resulting in trade charges as defined on Schedule C2. The minimum
monthly charge will be as noted below:
A. SOES Trades and Cancels B. All Other Trades and Cancels
Number of Trades Cost Number of Trades Cost Per
Per Month Per Trade Per Month Trade
---------------- --------- ----------------- --------
*** *** *** ***
Monthly Minimum: First six (6) months of processing live trades: $ 7,000
Month seven (7) through month twenty-four (24) of
processing live trades: $10,000
Month twenty-five (25) through the term of this
Agreement: $20,000
For processing of incoming correspondent accounts which are not converting from
another firm using the PHASE3 System, SunGard will waive the trade charges for
the first three months.
2. The above charges include the following:
a. All reports and functionality as outlined in the Users Manual except:
1. Retail Portfolio System
2. Safekeeping System
3. Investment Portfolio
3. The Retail Portfolio Appraisal System fees are as follows:
a. ***
b. $5,000.00 monthly minimum
4. Items not included in trade/cancel charge:
Programming or Custom Reports Quote
ENFORMS Quote
Additional sets of User Manuals $150.00 per copy
Labels/3x5 cards
----------
*** Certain information on this page has been omitted and filed separately with
the Commission pursuant to a request for Confidential Treatment.
Customer's Name: Xxxxxx Financial Services, Inc. SunGard Customer:
0 - 2,000 min. $100.00 $.15 per item
2,001 - 10,000 min. $300.00 $.06 per item
10,001-+ $.04 per item
Muni Bond Pricing ***
Communication Boards, lines, Modems, etc. Cost
Equipment Quote
Tapes Cost
Microfiche - original frame $2.00
- per copy $.10
IRS Year-End Processing Cost + 10 %
----------
*** Certain information on this page has been omitted and filed separately with
the Commission pursuant to a request for Confidential Treatment.
Customer's Name: Xxxxxx Financial Services, Inc. SunGard Customer:
2
SCHEDULE C2
TO REMOTE PROCESSING AGREEMENT
DATED 7-10, 1995
--------------------------------------------------------------------------------
TRADE DEFINITION
--------------------------------------------------------------------------------
Trade Counts for PHASE3 Pricing
Principal
Customer Sell; Inventory Buy 1 Trade
Customer Buy; Inventory Sell 1 Trade
Inventory Buy; Inventory Sell 1 Trade
Agency
Client Buys; Broker Sells or Multiple Broker Sells 1 Trade
Client Sells; Broker Buys or Multiple Broker Buys 1 Trade
Cancel/Corrections
Originally billed for the first trade 1 Trade
Cancel 1 Trade
Rebill 1 Trade
-------
Total 3 Trades
When Issued
Originally billed for the first trade 1 Trade
Cancel When Issued 1 Trade
Regular Way Trade 1 Trade
-------
Total 3 Trades
Repo
Opening trade regardless of number of pieces of collateral 1 Trade
Closing trade regardless of number of pieces of collateral 1 Trade
Each collateral substitution 1 Trade
Reverse Repo
Same as Repo
TBA's
Originally billed for TBA 1 Trade
Cancel TBA 1 Trade
Each pool within a lot of an allocation 1 Trade
Customer's Name: Xxxxxx Financial Services, Inc. SunGard Customer:
SCHEDULE C3
TO REMOTE PROCESSING AGREEMENT
DATED 7-10, 1995
--------------------------------------------------------------------------------
SUNGARD BROKERAGE SYSTEMS STANDARD PROFESSIONAL FEES
--------------------------------------------------------------------------------
Daily Hourly
Vice President or above $2,000 $250
Director $1,440 $180
Product Manager/ $ 960 $120
Project Manager
Business Analyst $ 800 $100
Sr. Technical Consultant
Programmer $ 800 $100
Customer's Name: Xxxxxx Financial Services, Inc. SunGard Customer:
SCHEDULE C4
TO REMOTE PROCESSING AGREEMENT
DATED 7-10-95
--------------------------------------------------------------------------------
CONVERSION PROCESS
--------------------------------------------------------------------------------
A. IMPLEMENTATION PLANNING
The implementation planning sessions are held early in the conversion
process, at the client site. Planning sessions include Customer's
management and the SunGard conversion team. Objectives of these meetings
are:
o Define project organization
o Define status reporting mechanism
o Define issues resolution mechanism
o Define enhancement management mechanism
o Define file conversions
o Determine conversion dates
o Determine dependencies
o Develop conversion plan, complete with:
- key activities and target dates
- responsibilities of all participants
- training schedule
- testing methodologies
- network design
B. REVIEW OF OPERATIONAL PROCEDURES AND FUNCTIONS
The review of operational procedures and functions is conducted by the
SunGard conversion team. This review process is performed prior to
finalizing the detailed training schedule. Process includes:
o Complete review of each area of client operations:
- existing procedures
- existing forms
- existing reports
o Meet with supervisors and key personnel
o Review of work-flows
o Report mapping
o Identification and documentation of impact on operations
procedures/organizational structure
o Identification of interfaces
Customer's Name: Xxxxxx Financial Services, Inc. SunGard Customer:
SCHEDULE C4 (CONT'D)
TO REMOTE PROCESSING AGREEMENT
DATED 7-10, 1995
--------------------------------------------------------------------------------
CONVERSION PROCESS
--------------------------------------------------------------------------------
C. CREATION OF PHASE3 ENVIRONMENT
Telecommunications and additional hardware requirements are determined
jointly between Customer's technical representative and the SunGard's
communications manager. The ordering, installation and testing of
telecommunications is the responsibility of SunGard. The ordering and
installation of any additional terminals and printers is the responsibility
of Customer. SunGard and Customer will jointly test any new terminals and
printers.
SunGard is responsible for the setup and configuration for the testing and
training firm.
o Hardware and telecommunications requirements defined
o Equipment and lines ordered, installed and tested
o Training firm setup and configured
o Installation and testing of required software modifications
D. FILE CONVERSIONS
SunGard will develop conversion programs to convert Customer's data files.
Testing and approval of conversion programs is a joint responsibility
between Customer and SunGard.
o Determination of files to be converted
o Conversion strategy
o Specifications for converting each file determined
o Develop conversion programs
o Written procedures for testing developed
o Schedule test conversions and verification
E. STATEMENTS & FORMS
Customer is responsible for choosing a statement vendor for printing
monthly customer statements. SunGard will support Customer and the vendor
in the development and testing of statements. Customer and SunGard will
evaluate all forms and determine if existing forms must be modified for
utilization with the PHASE3 System.
o Customer statements
o Confirmations
o Transfer fanfolds
o New account forms
o Buy/Sell tickets
o Checks, N&A Cards, labels, etc.
Customer's Name: Xxxxxx Financial Services, Inc. SunGard Customer:
2
SCHEDULE C4 (CONT'D)
TO REMOTE PROCESSING AGREEMENT
DATED 7-10, 1995
--------------------------------------------------------------------------------
CONVERSION PROCESS
--------------------------------------------------------------------------------
F. TRAINING
SunGard and Customer will jointly develop a comprehensive training
schedule. SunGard will be responsible for training Customer staff on the
PHASE3 application. Customer will be responsible for ensuring staff is
available for participation in scheduled classes.
o Application training for testing of new software modifications
o Application training for users
o Procedural training
G. INTERFACES
SunGard and Customer are jointly responsible for testing of all external
and internal interfaces. SunGard will be responsible for installation and
execution of interfaces. Customer is responsible for notification to all
external vendors and service organizations of conversion dates.
o Interface requirements defined
o external
o internal
o Program/unit testing
o Extensive testing with external sources
o Documentation of procedures
o Notification of conversion
H. USER ACCEPTANCE TESTING
Customer and SunGard are jointly responsible for development and execution
of test plans for user acceptance testing.
o Development of test strategy and plan
o Identification of test cases
o Development of test data
o Systems integration tests
o Regression tests
o Verification of test results
I. PROGRESS MEETINGS
Progress meetings will be scheduled frequently to provide for status
updates and issue discussion/resolution.
Customer's Name: Xxxxxx Financial Services, Inc. SunGard Customer:
3
SCHEDULE C5
TO REMOTE PROCESSING AGREEMENT
DATED 7-10, 1995
--------------------------------------------------------------------------------
IMPLEMENTATION TRAINING & INSTRUCTION FEES
--------------------------------------------------------------------------------
I. Conversion will be performed at no charge. The Company will be responsible
for all reasonable and pre-approved travel and lodging.
II. Conversion programming that would be done at no charge:
- custom confirmation program
- custom commission program
- custom downloads
III. Conversions for fully disclosed correspondent customers of the company's.
a. The fee to convert correspondent accounts that do not require an
on-site visit will be $1,500.00 per account. SunGard will convert
accounts that meet or exceed the following:
1) Name & Address file over 500
2) Over 250 customer accounts with money balances
Whenever possible, the Company will utilize ACATS to transfer
positions.
b. The Company will be responsible for charges associated with custom
programming requests or on-site consulting as stated in Exhibit C.
c. The Company will be responsible for all reasonable and pre-approved
travel and lodging.
Customer's Name: Xxxxxx Financial Services, Inc. SunGard Customer:
NOTE: PORTIONS OF THIS EXHIBIT ARE THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST BY THE REGISTRANT TO THE SECURITIES AND EXCHANGE COMMISSION. SUCH
PORTIONS HAVE BEEN REDACTED AND ARE MARKED WITH A "[*]" IN PLACE OF THE REDACTED
LANGUAGE.
AMENDMENT TO THE REMOTE PROCESSING AGREEMENT
BETWEEN
SUNGARD FINANCIAL SYSTEMS, INC
AND
XXXXXX FINANCIAL SERVICES, INC
This is an Amendment dated September 13, 1996, ("Amendment") to the Data
Services Agreement between SunGard Financial Systems, Inc. ("SunGard"), 000
Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx, and Xxxxxx Financial Services, Inc.
("Customer"), 0000 X. Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, a North Carolina
Corporation, dated as of July 10, 1995 ("Agreement")
The parties to the Agreement intending to be legally bound agree as follows:
Schedule C1 entitle "SERVICE FEES", as referenced in Section 5 of the Agreement,
is hereby replaced with the attached, revised Schedule C1 which is incorporated
by reference herein and made a part hereof. This revised Schedule C1 will take
effect as of September 1, 1996.
Except as otherwise amended herein, the Agreement remains in full force and
effect.
SUNGARD FINANCIAL SYSTEMS, INC. XXXXXX FINANCIAL SERVICES, INC.
BY: Xxxxx Xxxxxx BY: [ILLEGIBLE]
----------------------------------- ---------------------------
TITLE: President TITLE: President
-------------------------------- ---------------------------
DATE: September 13, 1996 DATE: September 13, 1996
--------------------------------- ---------------------------
SCHEDULE C1
TO REMOTE PROCESSING AGREEMENT
DATED SEPTEMBER 13, 1996
--------------------------------------------------------------------------------
SERVICE FEES
--------------------------------------------------------------------------------
1. For purposes of this Agreement, the cost per trade will be as noted below.
Activity resulting in trade charges are defined on Schedule C2. The minimum
monthly charge will be as noted below:
A. SOES TRADES AND CANCELS B. ALL OTHER TRADES AND CANCELS
If less than 150,000 trades Number of Trades Cost Per Trade
per month are processed, Per Month
customer will be billed as
noted below: *** ***
Number of Trades Cost Per Trade
Per Month
*** ***
If 150,000 or more trades per
month are processed, customer
will be billed as noted below:
Number of Trades Cost Per Trade
Per Month
*** ***
Monthly Minimum: First six (6) months of processing live
trades: $7,000
Month seven (7) through month twenty-four
(24) of processing live trades: $10,000
Month twenty-five (25) through the term
of this Agreement: $20,000
For processing of incoming correspondent accounts which are not converting from
another firm using the PHASE3 System, SunGard will waive the trade charges for
the first three months.
----------
*** Certain information on this page has been omitted and filed separately with
the Commission pursuant to a request for Confidential Treatment.
SCHEDULE C1 -- PAGE 1
--------------------------------------------------------------------------------
Customer's Name: Xxxxxx Financial Services, Inc.
SCHEDULE C1 CONT.
TO REMOTE PROCESSING AGREEMENT
DATED SEPTEMBER 13, 1996
--------------------------------------------------------------------------------
SERVICE FEES
--------------------------------------------------------------------------------
2. The above charges include the following:
a. All reports and functionality as outlined in the Users Manual
except:
1. Retail Portfolio System
2. Safekeeping System
3. Investment Portfolio
3. The Retail Portfolio Appraisal System fees are as follows:
a. ***
b. $5,000.00 monthly minimum
4. Items not included in trade/cancel charge:
Programming or Custom Reports Quote
ENFORMS Quote
Additional sets of User Manuals $150.00 per copy
Labels/3x5 cards
0 - 2,000 min. $100.00 $.15 per item
2,000 - 10,000 min. $300.00 $.06 per item
10,001 - + $.04 per item
Muni Bond Pricing ***
Communication Boards, lines, Modems, etc. Cost
Equipment Quote
Tapes Cost
Microfiche - original frame $2.00
- per copy $.10
IRS Year-End Processing Cost + 10%
----------
*** Certain information on this page has been omitted and filed separately with
the Commission pursuant to a request for Confidential Treatment.
SCHEDULE C1 -- PAGE 2
--------------------------------------------------------------------------------
Customer's Name: Xxxxxx Financial Services, Inc.
NOTE: PORTIONS OF THIS EXHIBIT ARE THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST BY THE REGISTRANT TO THE SECURITIES AND EXCHANGE COMMISSION. SUCH
PORTIONS HAVE BEEN REDACTED AND ARE MARKED WITH A "[*]" IN PLACE OF THE REDACTED
LANGUAGE.
AMENDMENT TO THE REMOTE PROCESSING AGREEMENT
BETWEEN
SUNGARD FINANCIAL SYSTEMS INC.
AND
XXXXXX FINANCIAL SERVICES, INC.
This Amendment ("Amendment") to the Remote Processing Agreement between SunGard
Financial Systems Inc. ("SunGard") and Xxxxxx Financial Services, Inc.
("Xxxxxx"), is effective as of August 1, 2002.
BACKGROUND
Xxxxxx and SunGard are parties to that certain Remote Processing Agreement dated
July 10, 1995, as amended (hereinafter collectively referred as the "Original
Agreement"). Xxxxxx and SunGard desire to extend the term of the Original
Agreement and modify certain terms and conditions of the Original Agreement in
accordance with the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound hereby, the parties agree as follows:
1. Extension of Original Agreement. The Initial Term of the Original Agreement
is hereby extended to May 31 2008 ("New Extension End Date"). Thereafter this
Agreement will automatically renew for one (1) year renewal terms, provided that
either party may give the other at least 90 days written notice of its desire
not to enter into an additional renewal term.
2. Professional Services.
2.1 During the Initial Term, SunGard will provide to Customer a virtual
resources team ("Virtual Resource Team") consisting of one team leader (product
manager or project manager), one programmer and one business analyst, to assist
Customer in creating new software enhancements to and otherwise utilizing the
System. For software development and enhancement projects (each, a "Project"),
the initial requirements definition, analysis, and design work (collectively,
the "Initial Phase") will be performed at the time and materials rate set forth
in Schedule C1. Upon completion of the Initial Phase of any Project, SunGard
will provide Customer with a fixed bid to complete the remainder of such
Project. If Customer determines not to proceed further with the Project upon
receipt of the fixed bid, Customer shall be responsible to pay for the Initial
Phase of such Project only. If Customer determines to proceed with the Project,
Customer shall be responsible to pay for the Initial Phase and the fixed bid
submitted by SunGard. All other professional services matters performed by the
Virtual Resource Team shall be performed on a time and materials basis at the
time and materials rates set forth on Schedule C1.
2.2 Customer shall appoint a Project Liaison responsible for providing
access to the appropriate resources at Customer for project definition,
specifications, implementation planning and coordination between SunGard and
Customer.
3. Fees.
3.1 Schedule C-1 of the Agreement is deleted in its entirety and is
replaced with Schedule C-1 attached hereto.
3.2 Notwithstanding any other provision herein, SunGard reserves the
right to pass through to Xxxxxx, and Xxxxxx agrees to pay SunGard for (i) all
products, services and software that Xxxxxx has agreed in writing are to be
provided through the System and that are provided by third parties (including by
SunGard affiliates) at an additional cost and (ii) telecommunications charges
that Xxxxxx has agreed in writing are to be provided by SunGard or its
affiliates at an additional cost (provided Xxxxxx is appropriately credited for
telecommunications charges that have been improperly passed through). All third
party supplier increases in cost affecting the System Services shall be paid by
Xxxxxx; provided that for any particular third party supplier, any such change
shall be passed through to Xxxxxx not more than once per year. SunGard will
provide Xxxxxx with thirty (30) days prior written notice of any such increases.
4. Early Termination Fee. Section 8.2 (b) of the Original Agreement is
hereby deleted and replaced in its entirety with the following:
8.2(b) Customer acknowledges that SunGard has made significant
concessions on its per trade fees and minimum trading fees,
that the parties' reasonable expectations of SunGard's profits
under this Agreement are greater than can be accounted for by
the new minimum trading fees, and that it would be extremely
difficult to measure in advance what SunGard's actual profits
under this Agreement will be. Therefore, the parties have
expressly agreed that under certain circumstances Customer
will pay SunGard a defined termination fee as a reasonable
estimate of SunGard's profits under this Agreement and as
liquidated damages and not as a penalty. Accordingly, if there
is any termination of this Agreement before the New Extension
End Date (for any reason other than a material, uncured (which
cure shall have been effected as required in the Agreement)
default (which default shall include any material breach of
any material provision of the Agreement) by SunGard), or if
Customer ceases to use the System as its complete and official
books and records (for U.S. accounts) prior to the New
Extension End Date, Customer will pay to SunGard the
Calculation Amount (as defined below) multiplied by the number
of months (with a one time adjustment for the number of days
in any incomplete monthly period) between the effective date
of termination (or cessation of use of the System as the
complete and official books and records, if sooner) and the
New Extension End Date. As used in this Section, the
"Calculation Amount" shall mean *** with respect to each month
beginning on the effective date of this Amendment and
continuing
----------
*** Certain information on this page has been omitted and filed separately with
the Commission pursuant to a request for Confidential Treatment.
until April 30, 2004 and thereafter shall mean *** with
respect to each month beginning as of May 1, 2004 and
thereafter.
5. (a) Beginning on the date of this Amendment through the New Extension
Date if a SunGard Competing B/D (as defined below) enters into agreements with
and clears the trades of at least two different, unaffiliated Identified Xxxxxx
Correspondents (as defined below), when immediately prior to such agreement with
and clearing by the SunGard Competing B/D the trades of such Xxxxxx
Correspondent to be cleared by the SunGard Competing B/D had been cleared by
Customer then Customer may, within thirty (30) days of the execution of such
agreements, terminate this Agreement by providing at least one hundred and
twenty (120) days prior written notice to SunGard of its intention to so
terminate.
(b) "SunGard Competing B/D" shall mean a broker dealer firm acquired
by SunGard or an affiliate of SunGard (and only for so long as that the SunGard
Competing B/D remains an affiliate of SunGard) that provides trade clearing
services to third parties.
(c) "Xxxxxx Correspondent" shall mean a correspondent broker of
Customer whose trades Customer clears under this Agreement but, with respect to
a correspondent broker that clears a portion of its trades through one or more
different clearing firm (other than Customer), only that portion of the
correspondent broker whose trades are cleared through Customer. "Xxxxxx
Correspondent" shall also include correspondent brokers of affiliates of
Customer irrespective of whether such affiliates of Customer have a relationship
with SunGard. "Identified Xxxxxx Correspondent" shall mean a Xxxxxx
Correspondent, with respect to whom, the SunGard Competing B/D has NOT, in good
faith, relied on a written statement from the Xxxxxx Correspondent to the effect
that Xxxxxx is not its clearing broker for the trades to be cleared by such
SunGard Competing B/D.
6. SunGard agrees that if there is a SunGard Competing B/D, then it will
instruct and cause such SunGard Competing B/D not to have a general pattern and
practice of soliciting Xxxxxx Correspondents intentionally, directly and
selectively.
7. Miscellaneous. All capitalized terms used herein and not defined shall
have the meanings ascribed to them in the Original Agreement. Except as
expressly amended hereby, the provisions of the Original Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
first above written.
SUNGARD FINANCIAL SYSTEMS INC. XXXXXX FINANCIAL SERVICES, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Son
Name: Xxxxxx Xxxxxx Name: Xxxxxx X. Son
Title: President Title: President
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SCHEDULE C1
TO REMOTE PROCESSING AGREEMENT
ORIGINAL AGREEMENT DATE -JULY 10, 1995
AMENDMENT DATE AS OF AUGUST 1, 2002
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SERVICE FEES
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1. For purposes of this Agreement, the cost per trade will be as noted
below.
The combined trade volumes across all USD firms will be used to
determine the monthly trades.
All USD Trades and Cancels for Non-ECN Correspondents:
DAILY TRADES COST PER TRADE
------------ --------------
*** ***
All USD Trades and Cancels for ECN Correspondents:
*** ***
The combined trade volumes across all Non-USD trades will be used to
determine monthly trades.
All Non-USD Trades and Cancels:
DAILY TRADES COST PER TRADE
------------ --------------
*** ***
Monthly Minimum for Trade Processing is ***.
The above charges include the following:
All reports and functionality outlined in the users manual except
(1) as described below in this Schedule C1,
(2) for third party products and services as described in this
Amendment or this Agreement or
(3) other items that are not provided to XxxXxxx Xxxxx0 customer
base generally without an additional charge
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2. Professional Services Rates for Virtual Resource Team:
TIME & MATERIALS RATES
Product Manager/Project Manager $80.00 per hour
Business Analyst $80.00 per hour
Programmer $80.00 per hour
Minimum Monthly Fees for Virtual Resource Team is ***
3. Equipment and additional items not included in above charges (upon use
or request by Customer)
Programming and developments Quote
ENFORMS Quote
Additional sets User Manuals $150 per manual
Labels/3x5 cards
0 - 2,000 min. $100.00 $.15 per item
2,001 - 10,000 min. $300.00 $.06 per item
10,001-+ $.04 per item
Muni Bond Pricing ***
Communications Boards, lines, Modems, etc. Quote
Equipment Quote
Tapes Quote
IRS Year End Processing Cost + 10%
4. Data Replication ***
New files added Quote
5. StreamBridge (Swift) ***
***
New Stream Interfaces ***
6. Test Firm *** (upon request or use by Customer)
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EXHIBIT B
FTID PRICING
***
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*** Certain information on this page has been omitted and filed separately with
the Commission pursuant to a request for Confidential Treatment.
