Exhibit 10.5
DATA PROCESSING SERVICES AGREEMENT
This Agreement is made and entered into between AFFILIATED COMPUTER
SERVICES, INC., a Delaware corporation ("ACS"), 0000 Xxxxx Xxxxxxx, Xxxxxx,
Xxxxx 00000, and LONG BEACH ACCEPTANCE CORP ("Customer"), Xxx Xxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxx Xxxxxx 00000.
Whereas, ACS is currently performing data processing services for Customer under
a Data Processing Services Agreement dated June 13, 1996, and
Whereas, ACS and Customer desire to replace the current Agreement with this
Agreement, which sets forth the terms and conditions under which ACS will
continue to perform data processing and other services in order to provide to
Customer the applications set forth in Schedule A (the "Support System");
Now, therefore, ACS and Customer agree as follows:
1. SERVICES.
1.1. SUPPORT SYSTEM. ACS agrees to perform for Customer, and Customer
engages ACS to perform data processing and other services in order to
provide to Customer the Support System, including the applications
specified in Schedule A. By an amendment to Schedule A or approved work
order signed by a duly authorized representative of Customer and ACS,
Customer and ACS may agree that ACS will perform additional services in
order to provide additional applications, and such applications shall
be included within the term "Support System" under this Agreement.
Customer will process with ACS (throughout the Original Term and any
Renewal Term of this Agreement) all accounts associated with each
Support System Application provided to Customer under this Agreement.
1.2. ONLINE INQUIRY AND UPDATE. The on-line Support System will be available
to Customer at ACS for data inquiry and update, Monday through Friday,
between 6:00 a.m. and 11:00 p.m. Central Time ("CT") and between 7:00
a.m. and 10:00 p.m. CT on Saturdays. Holidays (as defined in Section 7
of Schedule A) are excluded.
1.3. FORMS. ACS will provide to Customer standard ACS generic forms for
implementation of the Support System. Any special forms or statements
requiring preprinted identification or information unique to Customer
or forms to be used on equipment located at Customer's facilities will
be the responsibility of the Customer. Customer may provide special
forms through a third party vendor per ACS specifications.
1.4. REPORTS. ACS will provide Customer with standard daily reports, (or
other periodic reports) reflecting services provided to Customer.
1.5. DELIVERY AND PROCESSING. Customer will, at its own risk and expense, be
responsible for transporting or transmitting between Customer and/or
Customer's designees and the data
center designated by ACS (the "Data Center") all data and information
necessary for ACS to perform the services required by this Agreement
and all reports to be prepared or provided by ACS. Items to be
processed for daily reports shall be delivered to ACS (or shall be
transmitted to ACS in ACS format) by 9:00 p.m. CT each Business Day and
ACS shall have daily reports available at ACS for transmission to
Customer by 7:00 a.m. CT the next Business Day. If items to be
processed by ACS are not furnished in a timely manner, ACS may
reasonably reschedule services relying thereon. It shall be the
obligation of Customer to audit balance and reconcile any out of
balance condition. ACS shall have no obligation to determine the
authenticity, genuineness or accuracy of items delivered by Customer
and/or Customer's designees.
1.6. EQUIPMENT. Customer will provide, install and maintain in good
operating condition all necessary communication terminals and control
units to the Data Center, telephones, and any other equipment and
features required to implement the terms of this Agreement. All
equipment and features shall be acceptable to ACS. Customer will
furnish and install any and all spare parts reasonably required for
such equipment and features. Upon Customer's request, ACS shall arrange
for communication lines between ACS and Customer's location and
Customer shall reimburse ACS for such cost.
1.7. FINANCIAL STATEMENTS: AUDITS. Upon Customer's request, ACS will,
without charge, provide to Customer copies of the most recent audited
financial statements of ACS, the most recent unaudited financial
statements of ACS and will, without charge, provide for Customer's
review and return the most recent independent audit of ACS' data
processing functions. If Customer should desire to retain the audit of
ACS' data processing functions, Customer shall pay to ACS the current
price therefore set forth in Schedule "B". Customer may, at its own
expense, perform an EDP audit of the data center should it be
determined by the federal EDP examiner that ACS did not provide
Customer an adequate EDP audit.
1.8. NOTIFICATION OF SYSTEM CHANGES. All changes to the Support System
materially affecting Customer's procedures or reporting will be
preceded by release bulletins to Customer within a reasonable time
prior to the date of installation.
1.9. OPERATING INSTRUCTIONS. ACS may from time to time provide Customer with
instructions governing the operation of the Support System (the
"Operating Instructions"). Customer will comply with all such Operating
Instructions as may be in effect from time to time.
1.10. BACKUP PROCESSING ARRANGEMENTS. ACS will provide backup procedures and
facilities covering equipment, data, operating systems, and application
software in accordance with Federal Financial Information Exchange
Council guidelines which will facilitate continuation of services in
the event of a disaster. ACS will maintain an agreement with a national
computer disaster recovery provider or a compatible ACS data center
which will, in the event of a disaster, provide computer processing,
tape drives, DASD, printers, terminals and front-end processors at one
of several hot-site centers. As to telecommunications, ACS will provide
at Customer's request and expense a secondary lease line or a dial-up
capability from Customer's location to the disaster recovery site.
Upon Customer's reasonable request, ACS shall provide to Customer a
copy of the summary of ACS' disaster recovery plan and will allow
Customer to view the Disaster Recovery Plan in its' entirety at ACS'
premises.
1.11. ACCESS TO PREMISES. ACS shall allow from time to time reasonable access
by Customer and its designated representatives or auditors to ACS'
premises in connection with work performed by ACS under this Agreement.
Customer shall provide ACS with reasonable advance notice of the date
on which the visit is desired and shall comply with ACS security and
confidentiality requirements in connection with any such visit.
1.12 EXCLUSIVITY. ACS shall be the sole and exclusive provider of the type
of services offered under this Agreement with respect to all accounts
for which Customer is asked by its customers to furnish such services
and Customer is not instructed by its customers to use a different
service provider.
1.13 YEAR 2000 COMPLIANCE.
1.13.1 ACS shall ensure that all hardware and software components owned by ACS
which are part of the Support System used to furnish services under
this Agreement will not fail or produce errors or anomalous results as
a result of processing dates later than December 31, 1999 ("Year 2000
Compliant"). With respect to any hardware and software components not
developed by ACS which are part of the Support System, ACS shall report
quarterly to Customer in writing the status of efforts to bring such
hardware and software components into Year 2000 Compliance, and further
shall implement as promptly as possible in accordance with established
change management procedures all upgrades, updates, releases and
engineering changes made available by the vendor/licensor thereof to
make such software and hardware Year 2000 Compliant. ACS represents
that it has conducted testing of the Xxxx Loan Systems IL-LS/2000 v.
4.0 product to determine Year 2000 Compliance. Customer acknowledges
participation in the validation of such Year 2000 Compliance. ACS
represents that Xxxx Systems Associates, Inc. has certified that Xxxx
Loan Systems Product CS/2000 v. 4.2 is or will be Year 2000 Compliant.
ACS shall not be responsible for the failure of any vendor/licensor to
make its hardware or software Year 2000 Compliant.
1.13.2 If at any time Year 2000 Compliant deficiencies are identified in the
Support System, ACS will as soon as reasonably possible initiate action
to correct any deficiencies in the software owned by ACS and diligently
proceed with correction, or if such deficiencies are in components not
owned by ACS, ACS will work with the vendor/licensor to coordinate such
third party's efforts to correct any Year 2000 Compliant deficiency.
Nevertheless, no such action by ACS shall relieve ACS of it's
obligations to provide services to Customer hereunder or shall affect
in any way Customer's rights or remedies in the event such services are
not provided, including but not limited to Customer's rights under
Section 7.1.
1.13.3 ACS will, to the extent reasonably possible and in a manner designed to
have any hardware or software obtained from a third party and used by
ACS to provide the Services become Year 2000 Compliant, assert any
vendor/licensor's warranty, representation or other contractual
obligation concerning Year 2000 Compliance furnished by such
vendor/licensor. At the request of Customer and to the extent ACS has
the legal right to do so, ACS shall assign or pass through to Customer
or otherwise make available for the benefit of Customer, any
vendor/licensor's warranty, representation or other contractual
obligation concerning Year 2000 Compliance applicable to any hardware
or software furnished by such vendor/licensor and used by ACS to
provide the Services.
2. CHARGES FOR SERVICES.
2.1. PRICING. Customer will pay ACS for the data processing and other
services set forth in Schedule A in accordance with the pricing
schedule attached hereto as Schedule B. In the event Customer engages
ACS to perform additional services as evidenced by an amendment to
Schedule A, Customer will pay ACS for the additional services in
accordance with an amendment to Schedule B signed by a duly authorized
representative of ACS and Customer, to be attached thereto.
2.2. PAYMENT. ACS will xxxx Customer on a calendar month basis for current
services by the fifteenth (15th) calendar day of each calendar month
following the month in which services are rendered. Provided that
Customer receives the related invoice from ACS on or before the
fifteenth (15th) of a month, Customer shall pay ACS the stated charges,
fees, and any applicable taxes by the thirtieth (30th) calendar day of
each month. Any amounts that remain unpaid for thirty (30) days after
the receipt by Customer of an invoice shall bear interest at the rate
of one and one-half (1 1/2) percent per month from the date of the
invoice but not to exceed the highest applicable, lawful rate.
2.3. PRICE CHANGES. ACS may not change the prices set forth in Schedule B
excluding pass through charges for one (1) year; however, after the
expiration of such one (1) year period, the prices set forth in
Schedule B shall be automatically increased during each subsequent one
(1) year period by the percentage increase, if any, from the previous
year in the National Consumer Price Index for All Urban Consumers (All
Items 1984 = 100) published by the Bureau of Labor Statistics of the
U.S. Labor Department.
3. PERFORMANCE
3.1 REQUESTS FOR ADDITIONAL SERVICES. ACS will respond to each Customer
request for services not covered by Schedule A by providing pricing
information within five (5) Business Days after receipt of a complete
specification for the work.
3.2. POINT OF CONTACT. ACS and Customer recognize that good communication
between the companies is essential to a successful business
relationship. Therefore, each party agrees to identify a single point
of contact, plus an alternative contact, for communication. The
contacts, with appropriate business phone or pager numbers, will be
provided by
Customer and ACS. During ACS' normal business hours Customer will
communicate with the contact or alternate for project related issues,
estimated time for production and communication problem resolution, and
the status of production and communication problems. However, the
reporting of production and communication problems encountered during
ACS' normal business hours or the notification of crucial production
problems that impact Customer's business after ACS' normal business
hours should initially be reported by Customer to ACS' Helpdesk. ACS
agrees to escalate reported production and communication problems to
the point of contact or alternate or other appropriate individuals.
Crucial production problems include the lack of availability of the
on-line Support System during the hours defined in Section 1.2, and the
inability to communicate through the telecommunication lines between
ACS and Customer.
4. TERM
The Original Term of this Agreement shall begin with the execution
hereof and shall continue for a period of three (3) years, with an
option to renew in additional increments of up to one (1) year upon
mutual agreement by ACS and Customer unless terminated earlier pursuant
to Section 7.1, 7.2, 7.3, 7.4, 7.7 or 8 or unless either party gives
written notice of non-renewal to the other party at least ninety (90)
days before the end of the Original Term or any Renewal Term.
5. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
5.1. CONFIDENTIALITY.
A. Customer acknowledges and agrees that the Support System
consists of computer programs, procedures, forms, information and other
materials which constitute confidential and proprietary information of
ACS. Customer represents and ACS acknowledges and agrees that all
information regarding Customer and its parent, their affiliates and
their respective businesses, operations and plans, constitute
confidential and proprietary information of Customer (each item for
each party individually and all collectively are referred to herein as
"Confidential Information").
B. Each party and its affiliates, employees, officers,
directors, partners, agents and representatives, including attorneys,
accountants, and financial advisors (collectively, "Representatives"),
shall use Confidential Information solely for the purpose of
administering this Agreement. Each party shall disclose Confidential
Information only to its Representatives who have a need to review the
same for such purpose.
C. The term "Confidential Information" shall not include
information which is or becomes generally available to the public other
than as a result of a disclosure by the party not claiming
confidentiality or any of its Representatives. The term "Confidential
Information" shall also not include information which is or becomes
available to either
party on a non-confidential basis from any source other than the party
claiming confidentiality or its affiliates, provided that that such
source is not known by such receiving party to be prohibited from
transmitting the information to such party by a contractual or other
obligation.
D. Except in the course of performance in connection with this
Agreement, neither party shall make any reproductions, other than
handwritten summaries or notes, of Confidential Information regarding
the other party without the prior consent of the other party.
E. Each party shall inform each of its Representatives who
receives Confidential Information of the requirements of this Agreement
and shall cause each such Representative to comply with such
requirements.
F. In performing its services under this Agreement, ACS shall
not communicate with any debtor or guarantor of any receivable held or
serviced by Customer or with any accountant or attorney for, or third
party related to, any such debtor or guarantor without he prior written
consent of Customer.
G. Upon the termination of this Agreement each party shall
destroy on return to the other party all such other party's
Confidential Information, all compilations, studies, notes,
calculations and other documents and records which contain or reflect
or are in any way based upon such Confidential Information, and all
copies of the foregoing (regardless of the medium, in which any such
item exists) except that each party may retain its financial,
accounting and other internal administrative records created in the
course of performing under this Agreement.
H. If either party or any of its Representatives is requested
or required (orally or in writing, by interrogatory, subpoena, civil
investigatory demand or any similar process relating to any legal
proceeding, investigation, hearing or otherwise) to disclose
Confidential Information regarding the other party, such party shall
provide the other party with prompt notice in advance of such
disclosure so that the other party may seek a protective order of other
appropriate remedy and/or waive compliance with this Section 5.1, and
such party agrees to cooperate with the other party to pursuing any
such course of action. In the event that any such protective order or
other remedy is not obtained or if the other party waives compliance
with the provisions of this Section 5.1, such party shall furnish only
such information as such party is advised is legally required and shall
exercise its best efforts to obtain assurance that confidential
treatment will be accorded to any information which is compelled to be
disclosed.
I. Each party recognizes that employees constitute valuable
assets of the other party. Accordingly, each party hereby agrees that
during the term of this Agreement and for a period of one (1) year
following the termination of this Agreement such party and its
affiliates shall not employ or enter into an employment, partnership,
independent contractor, consultant or other work related arrangement
with any person who is
employed by the other party at any time during the term of this
Agreement without the prior written approval of the other party.
J. All materials developed in connection with the Support
System shall remain the property of ACS. Nevertheless, ACS shall not
use as part of its marketing materials any customized letters or forms
developed by Customer for use in connection with this Agreement.
K. Each party agrees that the other party's remedy at law for
breach of this Section 5.1 is inadequate and that the aggrieved party
shall be entitled to a temporary restraining order and preliminary and
permanent injunctive relief to enjoin any breach or threatened breach
thereof without proof of any actual damages that my be or may have been
caused to it by such breach. The foregoing remedies shall be in
addition to any other right, power or remedy available to such party
under law or equity. No forbearance, failure or delay in exercising any
such right, power or remedy shall operate as a waiver or preclude the
further exercise thereof.
6. CORRECTION OF DATA; LIMITATION OF LIABILITY.
6.1 CORRECTION OF DATA. In the event ACS' employees, software or equipment
cause errors in Customer's data to occur and Customer requests
correction of such data within ninety-five (95) days from the date of
the error, ACS will correct such data at ACS' expense. The expense to
ACS of correcting such data shall be the only responsibility of ACS and
shall constitute Customer's sole and exclusive remedy with respect to
such errors, except that ACS shall also be liable for damages subject
to the limitations set forth in Section 6.2.
6.2. LIMITATION OF LIABILITY. Except for losses covered by ACS' fidelity
coverage described in Section 6.3 and except for liability arising
under Section 5.1 or Section 8, ACS' total liability over the Term of
this Agreement for any and all damages of any nature whatsoever,
whether direct, indirect, special incidental and/or consequential,
alleged by Customer or any other party in any section, regardless of
its nature, arising out of or in connection with this Agreement shall
not exceed three (3) months charges paid by Customer to ACS under this
Agreement, such amount to be determined by finding the monthly average
of the charges paid by Customer for the six (6) months preceding the
month in which the damage or injury is alleged to have occurred, and
multiplying such average by three (3). Customer will release, indemnify
and hold ACS harmless from and against any claim for damages in excess
of such amount.
6.3. FIDELITY COVERAGE. During the term of this Agreement ACS will maintain
fidelity coverage with respect to its employees of up to one million
dollars ($1,000,000) per occurrence.
6.4. FORCE MAJEURE. ACS shall not be liable for damages arising from or
delays in processing or other nonperformance caused by such events as
accidents, fires, telecommunications
failures, equipment failures, failures or fluctuations in electrical
power, heat, light or air conditioning, labor disputes, strikes, riots,
war, governmental regulations, third party nonperformance, acts of God
or other causes over which ACS has no control.
7. TERMINATION.
7.1 TERMINATION FOR CAUSE. Customer or ACS may terminate this Agreement
upon the material breach or nonperformance of this Agreement by the
other party under this Agreement and the failure of such party to cure
such breach or non-performance within ninety (90) days after receipt of
written notice specifying in detail the breach claimed.
7.2 TERMINATION FOR NON-PAYMENT. If Customer fails to pay in full any
invoice within thirty (30) days from Customer's receipt of the invoice,
ACS may notify Customer that such invoice is past due and provide a
thirty (30) day period for payment of the past due amount plus any
interest accrued thereon. If Customer fails to pay the full amount of
such invoice plus interest within such thirty (30) day period, ACS may
terminate this Agreement and all services hereunder at any time upon
written notice to Customer.
7.3 TERMINATION UPON INSOLVENCY. In the event either party is declared
insolvent and is liquidated by any state or federal regulatory agency,
this Agreement shall automatically terminate upon declaration of
insolvency. If Customer is declared insolvent, ACS shall be entitled to
liquidated damages pursuant to Section 7.7, and if ACS is declared
insolvent, Customer shall be entitled to all damages and expenses
incurred by Customer in putting substitute data processing into place,
subject to the limitation set forth in Section 6.2. Notwithstanding the
foregoing, in the event either party is declared insolvent but is not
liquidated, or is placed in receivership or conservatorship, or other
similar actions are taken, the use of the Support System thereafter by
any new owner, receiver, conservator, manager or other agent or
representative shall be deemed acceptance and assumption of this
Agreement on the full terms and conditions contained herein, including
but not limited to Section 7.7.
7.4 TERMINATION WITHOUT CAUSE. Either party may terminate this Agreement
without cause upon ninety (90) days written notice to the other party.
In the event Customer terminates this Agreement, other than a
termination by Customer pursuant to Section 7.1, 7.3 or 8, Customer
shall pay to ACS liquidated damages calculated in accordance with
Section 7.7. In the event ACS terminates this Agreement, other than a
termination by ACS pursuant to Sections 7.1, 7.2, 7.3 or 8, ACS shall
pay to Customer the expenses incurred by Customer in putting substitute
data processing into place, provided in no event shall the amount
payable by ACS under this Section 7.4 exceed three (3) months charges
paid by Customer to ACS under this Agreement, such amount to be
determined by finding the monthly average of the charges paid by
Customer for the six (6) months preceding the month in which ACS gives
notice of termination and multiplying such average by three.
7.5 FILES AND OTHER MATERIALS. Upon termination or non-renewal of this
Agreement in accordance with its terms, all data files created by ACS
and related to Customer will be
furnished to Customer by ACS in machine readable format at the cost set
forth in Schedule B. Except in the event of a termination by Customer
pursuant to Sections 7.1, 7.3 or 8, or termination by ACS pursuant to
Section 7.4, Customer will pay for all termination costs associated
with any data lines and or equipment that has been installed in
Customer as of the time of such termination, such payment to include
all of ACS' costs, if any, in accordance with the de-installation,
damage other than ordinary wear and tear, or other costs incurred or to
be incurred by ACS as a result of the termination. Upon termination or
non-renewal of this Agreement, Customer will return to ACS all
operations materials and materials relating to or constituting part of
the Support System, and Customer will purchase from ACS all Customer's
custom forms held or on order by ACS.
7.6 EFFECTS OF TERMINATION OR NON-RENEWAL. Upon any termination or
non-renewal of this Agreement, all amounts then owing from one party to
the other, together with any and all interest accrued and unpaid
thereon, shall be due and payable at the time of such termination or
expiration. The provisions contained in Sections 5.1, 6.2, 7.2, 7.3,
7.4, 7.5, 7.6, 7.7, 8 and 9 shall survive any termination or
non-renewal of this Agreement and shall not be extinguished thereby.
7.7 LIQUIDATED DAMAGES. Upon any termination of this Agreement (other than
a termination by Customer pursuant to Sections 7.1, 7.3 or 8, or a
termination by ACS pursuant to Sections 7.4 or 8) where the effective
date of termination is prior to the end of the Original Term or any
Renewal Term, Customer shall pay to ACS as liquidated damages an amount
equal to eighty percent (80%) of monthly xxxxxxxx to Customer under
this Agreement for the three (3) full months immediately preceding the
month in which the effective date of termination occurs, provided the
amount payable to ACS under this provision shall not be less than one
hundred thousand dollars ($100,000.00) or more than three hundred fifty
thousand dollars ($350,000.00). The parties hereto acknowledge and
agree that (a) ACS has incurred and will incur substantial expense in
connection with the commencement and continuation of providing services
hereunder, (b) ACS has substantial fixed expenses in providing these
services which cannot be reduced by termination of such services, (c)
in the event of any such termination, the damages that would be
uncertain and difficult and impracticable to calculate and (d) the
amount determined pursuant to this Section 7.7 represents a reasonable
method of estimating the actual damages that would be incurred by ACS
in the event of such a termination.
8. INFRINGEMENT INDEMNITY
ACS shall defend, at ACS' expense, any claim brought against Customer
alleging that the Support System utilized by ACS, including any
enhancement, upgrade or modification thereof, or the services furnished
hereunder infringe a patent, copyright, trade xxxx or other proprietary
right of a third party. ACS shall pay all costs and damages awarded or
agreed to in settlement of the claim, provided Customer gives ACS
prompt written notice of the claim and provides ACS with reasonable
assistance and sole authority to defend or settle the claim. In
addition, ACS shall obtain the right to continue furnishing the
services or use of the Support System, including any enhancement,
upgrade or
modification thereof, replace it, or make modifications so it is
non-infringing. If ACS determines such remedies are not reasonably
available, ACS shall so notify Customer. Upon such notification, either
party shall have the right to terminate this Agreement without
liability for such termination. This Section states the entire
liability of ACS for infringement claims.
9. REPRESENTATIONS AND WARRANTIES
Each party hereby represents, warrants and covenants to the other party
that at all times during the term of this Agreement that:
(i) it is a corporation duly organized and validly existing
under the laws of the state in which it is incorporated, with power and
authority to own its properties and to conduct its business as such
properties are owned and such business is conducted;
(ii) it has the power and authority to execute and deliver
this Agreement and to carry out its terms; and the execution, delivery
and performance of this Agreement have been duly authorized by all
necessary corporate action;
(iii) the performance and compliance with the terms of this
Agreement will not violate its charter or bylaws or constitute a
default (or an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any contract,
indenture, lease, credit agreement or any other agreement or instrument
to which it is a party or by which it is or may be bound or which may
be applicable to it or any of its assets, or result in the creation or
imposition of any lien or security interest upon any of its properties,
or violate any law, order, rule or regulation application to it of any
court or any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over it or its
properties;
(iv) it is duly licensed, registered and qualified to perform
the functions specified herein and this Agreement constitutes a valid,
legal and binding obligation of it, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally and to general principles of equity;
(v) no proceeding of any kind, including but not limited to
litigation, arbitration, judicial or administrative, is pending or
threatened against a third party or contemplated by it against a
third party which would under any circumstances have an adverse effect
on the execution, delivery, performance, validity, or enforceability of
this Agreement.
10. GENERAL.
10.1 GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of Texas. This Agreement has been accepted in and
shall be performable in Dallas, Dallas County, Texas. All times
referred to herein shall be Dallas, Texas time.
10.2 ENTIRE AGREEMENT: RIGHT TO PERFORM. This Agreement together with all
Schedules expressly referenced herein and in effect from time to time,
represent the entire understanding between Customer and ACS with
respect to the matters contained herein and, except as otherwise
provided herein, may be amended only by an instrument in writing signed
by the parties hereto. Each party warrants that it will be free, as of
the date of commencement of the services to be provided hereunder, of
any contractual obligation or legal impediment that would prevent such
party from performing its obligations under this Agreement, and that
the other party's willingness to enter into this Agreement in no way
caused or induced it to breach any contractual obligations.
10.3 SEVERABILITY. Any provisions in this Agreement which are found by a
court of competent jurisdiction to be invalid or unenforceable shall be
ineffective to the extent of such finding without affecting the
remaining provisions of this Agreement.
10.4 RELATIONSHIP OF PARTIES. ACS, in providing services to Customer
hereunder, is acting only as an independent contractor. Except as
otherwise provided herein: (a) ACS does not undertake by this Agreement
or otherwise to perform any obligation of Customer, whether regulatory
or contractual, or to assume any responsibility for Customer's business
or operations, and (b) ACS has the sole right and obligation to
supervise, manage, contract, direct, procure, perform or cause to be
performed, all work to be performed by ACS under this Agreement.
10.5 NOTICES. Any notice required or permitted hereunder shall be in writing
and shall be given by personal service, overnight delivery service or
certified mail, return receipt requested, postage prepaid, to the
addresses of the parties as they appear above, or as changed through
written notice to the other party.
10.6 BINDING EFFECT AND ASSIGNMENT. This Agreement is binding on the parties
hereto and their respective successors and assigns. Neither party may
assign this Agreement without the prior written consent of the other
party, which consent shall not be unreasonably withheld; provided that
the merger of either party with another company or the assignment by
Customer of this Agreement to the purchaser of all or substantially all
the assets of Customer, or the assignment by ACS of this Agreement to
the purchaser of all or substantially all the assets of the ACS
business segment responsible for this Agreement, shall not be deemed as
assignment in violation of this Section 10.6. Furthermore, either party
may assign this Agreement to any parent, subsidiary or affiliate,
provided that the assignee agrees in writing to be bound by the terms
and conditions of this Agreement; provided that no such assignment
shall affect the liability of the assignor, nor release such party from
its obligations under this Agreement.
Dated and effective this 15th day of April, 1999.
AFFILIATED COMPUTER SERVICES, INC. LONG BEACH ACCEPTANCE
CORP.
By /s/ Xxxx X. Xxxxxxx By /s/ Xxxxxxx X. Xxxxxx
-------------------------------- ----------------------------------
Name Xxxx X. Xxxxxxx Name Xxxxxxx X. Xxxxxx
------------------------------ --------------------------------
Title Vice President Title VP Finance
----------------------------- -------------------------------
DATA PROCESSING AGREEMENT
SCHEDULE A
APRIL 15, 1999
SERVICES
1. APPLICATIONS
ACS will provide and support the following XXXX Systems Data Processing
applications:
- IL/2000-LS/2000 Mainframe Consumer Loan Accounting and Portfolio
Management System. Version 4.0 and upgrades, if any, made available to
ACS by Xxxx Systems Associates, Inc.
- CS/2000 Mainframe Collection and Account Tracking System. Version 4.2
and upgrades, if any, made available to ACS by Xxxx Systems
Associates, Inc.
2. LETTER/STATEMENT RENDERING
ACS will provide custom IL/2000 statement rendering services and CS/2000
letter rendering services per the following minimum specification.
A. STANDARD STATEMENT STOCK
- 8 1/2 x 11 standard 24lb. paper stock
B. ENVELOPE SPECIFICATION
For the recommended 8 1/2" x 00" xxxxxxxxx xxxx, xxxxxxxx specifications are as
follows:
- Minimum paper weight must be a 24lb. white woven.
- Envelope size should be a standard #10 1/2 (9 1/2" x 4 1/2")
- Side seams should be securely bonded to the back without exhibiting
any curl or ripple between the back panel and side seam.
- Window patches must be flat, ripple free and bonded within 1/8" of the
top edge of the back and within 1/4" of the inner edge of the side
seam.
- Window material must be Cellophane or Dow film. Glassine is
unacceptable.
- The flap must be a "V" flap with a minimum 2" depth from the fold to
the point of the flap.
- The flap must have a continuous border of vegetable based glue 1
millimeter wide.
C. INSERT SPECIFICATIONS
Paper inserts must have specific measurements within your envelope as
follows:
- Size must be 3" x 5 1/2" minimum and 3 3/4" x 8 1/2" maximum
- Thickness must be from .004" or .01mm to a maximum of 3/16" or 4.76mm.
- The flexibility of the material must be suitable for high speed feed,
conveying and inserting. The highest stiffness that is practical is
recommended.
- The vertical clearance must be a minimum of 1/4" within the envelope.
- The horizontal clearance must be a minimum of 1" within the envelope.
Where practical, and additional 1/8" clearance will ensure maximum
inserting efficiency. Standard letter fold for any folded inserts.
3. ACS will advise Customer of all material upgrades made by Xxxx to the
systems listed above. ACS will, at its expense obtain and implement any
such upgrades which are generally obtained by similar users of such system.
4. ACS will provide ongoing support for the Support System as follows:
- Product support at no additional charge
-- Application and ACS owned Network support.
- Programming enhancements and development projects
-- Project costs will be estimated (at no cost) within five (5)
working days of receipt of specifications.
5. ACS shall provide:
- monthly credit bureau update tapes to Experian, TransUnion and/or
Equifax, when notified in writing by Customer to do so
- all standard Xxxx reports as directed by Customer
- all custom reports currently provided to Customer
- standard interfaces
* loan origination system (Appro) * auto dialer
* monthly history * daily mini-master (data
* lockbox (Regulus) warehouse file)
* Western Union (Quick Collect)
6. ACS will provide to Customer Tuesday thru Saturday excluding holidays, a
mini-master (data warehouse file) per Customer's specifications at the
charges set forth in Schedule B.
7. Holidays:
New Year's Day Memorial Day Independence Day
Labor Day Thanksgiving Day Christmas Day
DATA PROCESSING SERVICE AGREEMENT
SCHEDULE B
APRIL 15, 1999
The prices itemized below refer to the Charges For Services as noted in
Section 2 of the Data Processing Service Agreement.
All Data Processing charges relate to data processing components as listed on
Schedule A of the Data Processing Service Agreement.
DATA PROCESSING IL-LS/2000, CS/2000: CHARGES
0 to 10,000 accounts --------------- $1.35 per account/month
10,001 account and above --------- $ .75 per account/month
PRICING IS NOT CUMULATIVE; NOT RETROACTIVE TO PREVIOUS TIERS OF
PRICING.
ACCOUNT SHALL MEAN ALL RECORDS STORED ON THE INSTALLMENT LOAN
MASTER FILE INCLUDING ACTIVE, INACTIVE, CHARGED-OFF LOANS AND
DEALER RECORDS.
$5,000.00 PER MONTH MINIMUM CHARGE
PROGRAMMING ENHANCEMENTS: CHARGES
Standard Development - $110.00/hour
CONVERSION: CHARGES
Subsequent portfolio conversions will be
charged at a rate of $110.00 per hour.
All such charges will be pre-approved by
Customer. Reasonable travel, lodging and
meal expenses billed separately and paid
in accordance with this Agreement.
Training - $1,000 per day - Reasonable travel, lodging and meal
expenses billed separately and paid in
accordance with this agreement.
TELECOMMUNICATIONS:
Telecommunication and Network Support costs will be billed monthly as
pass-thru expense. Minimum communication requirements include: 256K circuit,
modems with dial back-up capacity per connection site.
STATEMENT AND LETTER RENDERING SERVICES - SYSTEM PRODUCED: CHARGES
Printing Inserting & Envelopes Envelopes Inserts
Impressions Mailing (Mailer) (Return) (over 1)
Statements .055 .09 Pass thru Pass thru .01
Letters .055 .09 Pass thru .01
$3,000 MONTHLY MINIMUM
$ 500 SET UP FEE
LETTER RENDERING SERVICES - NOT SYSTEM PRODUCED: CHARGES
Printing Inserting & Envelopes Production Inserts
Impressions Mailing (Mailer) Support (over 1)
Statements .055 .09 Pass thru .05 .01
ADDITIONAL PRINT COSTS - All reports will be printed at Customer site. Any
additional reports printed at ACS will be at $.04 per
page with a $15.00 per month minimum. Courier and
Delivery Services will be the responsibility of
Customer.
MAGNETIC TAPES - $50.00 per magnetic tape produced and mailed by ACS.
DEINSTALLATION - $5,000.00-Includes up to two sets of test tapes.
MINI-MASTER (DATA WAREHOUSE FILE):
WEEKLY OR MONTHLY: No Charge
DAILY: $ 500.00 per month
AUTO DIALER:
Download to Auto Dialer System - Included in base processing fee.
Upload from Auto Dialer(s) to CS/2000 -0 - 50,000 transactions -$ 750 per month
(optional service) 50,001 - 100,000 transactions -$1250 per month
100,001 - 150,000 transactions -$1750 per month
150,001 - 250,000 transactions -$2000 per month
250,001 - 350,000 transactions -$2500 per month
350,001 + transactions -$3000 per month
TRANSACTION SHALL MEAN ANY RECORDED INFORMATION PER EACH CALL ATTEMPT BY
CUSTOMER'S AUTO DIALER
XXXX ON-LINE DOCUMENTATION:
Three Modules: IL, LS, CS/2000 $300.00 ($100.00 each)
Third Party Audit of Data Processing Functions $ 500.00 per copy
