EXHIBIT 10-1
BISYS, INC.
00 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 000000-0000
Client The First National Bank of Leesport
Address 000 Xxxxx Xxxxxx Xxxxxx
City Leesport State Pennsylvania Zip Code 19533
1. SCOPE OF AGREEMENT.
BISYS, Inc. ("BISYS") shall provide Client, in accordance with
this Agreement, the services selected by Client from BISYS' then
applicable Standard Services Price List and/or Special Services
Price List (collectively, the "Price Lists") (collectively, the
"Services"). BISYS shall provide the reports listed on the
Standard Reports List and Special Reports List as applicable to
the Services selected by Client. The current Price Lists are
attached hereto and made a part hereof.
2. TERM OF AGREEMENT.
A. The initial term of this Agreement shall commence April 1,
1998 (the "Initiation Date") and end 60 full calendar months
thereafter (the "Initial Period").
B. The Agreement shall automatically continue after the Initial
Period for subsequent consecutive terms of one year each
unless and until it is terminated by either party upon
written notice to the other given at least 90 days prior to
the end of the Initial Period or any additional three year
period.
C. If Client has given BISYS notice pursuant to Paragraph 2(B)
and Client intends to deconvert from the BISYS data
processing system ("BISYS System"), Client may, upon written
notice to BISYS given at any time during the final 120 days
of this Agreement (as determined in accordance with 2(B)
above) or any extension hereof pursuant to this
Paragraph 2(C), extend the termination date to the date
indicated in such notice, which date shall not be, in any
event, less than 120 days after date of such notice.
Commencing at the end of the Initial Period or any renewal
period (as applicable), Client shall pay for Services at the
prices set forth in the then current BISYS Price Lists
notwithstanding the giving of extension notice.
D. Continuing obligations under this Agreement are those
relating to "BISYS Products" (defined in Paragraph 9(A)):
"Confidential Information" (defined in
Paragraph 9(F)) and "Client Files" (defined in
Paragraph 7(A)), and which continuing obligations shall
survive any termination of this Agreement.
3. CHARGES.
A. Each month commencing Initiation Date, whether or not Client
actually uses any Services during such month, Client shall
pay a minimum monthly charge equal to the greater of
(i) $16,000.00; (ii) BISYS' charges for the Services
actually used by Client during such month; (iii) 80% of the
charges invoiced to Client during the immediately preceding
month; or (iv) 80% of the charges invoiced to Client for the
month immediately preceding any deconversion by Client if
Client deconverts from the BISYS System.
B. The initial charges for the Services are specified in the
Price Lists, and shall be recorded by the BISYS System or by
any other means used by BISYS of determining Client's usage.
The charges for the Services listed on the Standard Services
Price List as of the date hereof will not be changed by
XXXXX until the expiration of the first year following
Initiation Date. Thereafter, during the remaining term of
the Initial Period, the charges for the Services listed on
the Standard Services Price List may be changed by XXXXX at
any time and from time to time upon at least 90 days prior
written notice to Client. During the Initial Period, the
charges for the Service listed on the Special Services Price
List as of the date hereof may be changed by XXXXX at any
time after the date hereof upon at least 90 days prior
written notice to Client. After the Initial Period, the
charges for the Services listed on the Price Lists shall
automatically, and without notice, be changed to BISYS'
standard (non-discounted) list prices then in effect for the
respective Services; such prices may, thereafter, be changed
by XXXXX, at any time and from time to time, upon at least
90 days prior written notice to Client.
C. There shall be added to all charges for the Services
furnished Client hereunder amounts equal to any applicable
taxes levied or based on such Services, exclusive of taxes
based on BISYS' income.
D. No later than the 5th day of each calendar month, BISYS
shall invoice (the "Monthly Invoice") Client: (i) for all
Services projected to be used by Client during the billing
month (the "Billing Month") which charge will be based upon
either actual usage and number of accounts during the month
prior to the Billing Month or the minimum charge pursuant to
Paragraph 3(A); (ii) an amount equal to 100% of the
recurring pass through charges actually utilized by Client
during the prior month as the estimated pass through charges
for the Billing Month; (iii) adjustments (debits/credits) to
the prior month's estimated charges set forth in
(i) and; (iv) all other charges incurred by Client during
the prior month. Client agrees to pay all amounts set forth
in the Monthly Invoice by automatic debit by XXXXX the last
business day of the Billing Month from a Client bank account
established for this purpose (the "Payment Account").
Client agrees to execute any and all required documentation
to enable BISYS to perform such automatic debiting of the
Payment Account. If Client fails to pay any amounts due
under this Agreement, Client shall, upon demand, pay
interest at the rate of 1-1/2% per month, but in no event
more than the highest interest rate allowable, on such
delinquent amounts from their due date until the date of
payment. Client agrees to reimburse BISYS for any and all
expenses BISYS may incur, including reasonable attorney
fees, in taking action to collect any amounts due BISYS
hereunder. All amounts due must be paid prior to Client's
deconversion from the BISYS System.
4. AVAILABILITY OF THE SERVICES.
A. Hours for accessing Services on an on-line basis ("On-Line
Hours") at the BISYS data center providing Services to
Client ("Data Center") are 7:00 A.M. to 9:00 P.M. Monday
through Friday and 7:00 A.M. to 5:00 P.M. Saturday (Data
Center time) exclusive of BISYS holidays (New Years Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day
and Christmas Day). A particular Service may also be
available at other than On-Line Hours; in which event Client
may, at its option and subject to any additional charges
therefor, use that Service at such other times.
B. BISYS will make every reasonable effort to have the Services
available during the On-Line Hours. However, BISYS cannot
and does not guarantee such availability. Accordingly,
Client's remedy and XXXXX's sole liability to Client or any
third party for claims, notwithstanding the form of such
claims (e.g., contract, negligence or otherwise), arising
out of (i) the unavailability of the BISYS System or
(ii) the interruption in or delay of the Services provided
or to be provided by BISYS hereunder, shall be for BISYS to
use all reasonable efforts to make the BISYS System
available and/or to resume the Services as promptly as
reasonably practicable.
C. Client shall, at its expense, be responsible for delivering
and transmitting to and from Client's offices, the offices
of the acceptable regulatory authorities and any other
location authorized by Client, and the Data Center all data
and information necessary for BISYS to furnish the Services
to Client.
5. USE OF THE SERVICES.
A. Client is exclusively responsible for the consequences of
its own action; for any instructions it gives BISYS; for its
failure to access the Services in the manner prescribed by
XXXXX, and for its failure to supply accurate input
information. Client is responsible for auditing, balancing,
verifying the correctness of calculation routines (such as
interest and service charges) and reconciling any out-of-
balance condition, and for notifying BISYS of any errors in
the foregoing within three business days after receipt of
the incorrect information. Client's remedy and XXXXX' sole
liability to Client or any third party for any claims,
notwithstanding the form of such claims (e.g., contract,
negligence or otherwise), arising out of errors or omissions
in the Services provided or to be provided by BISYS
hereunder and caused by XXXXX shall be for BISYS to furnish
the correct report and/or to correct the applicable Client
Files, provided that Client promptly advises BISYS thereof.
B. Client shall use the Services in accordance with such
reasonable instructions as may be established by XXXXX from
time to time as set forth in any written materials furnished
by BISYS to Client.
C. Except as otherwise permitted by BISYS, Client will use the
Services only for its own internal and proper business
purposes and will not sell or otherwise provide, directly or
indirectly, any of the Services or any portion thereof to
any third party.
D. Client shall not make any alteration, change or modification
to any of the computer programs, data bases and/or BISYS
supported files used by BISYS in connection with providing
the Services to Client hereunder, without XXXXX' prior
written consent in each instance.
E. BISYS shall give Client written notice of any BISYS system
change which materially affects Client. Nothing herein
shall preclude or limit BISYS' ability to make changes to
its data processing system.
6. COMMUNICATION LINES AND EQUIPMENT.
A. BISYS shall order, on Client's behalf and with Client's
approval, the installation of appropriate telephone lines
and communications equipment to enable Client to access the
Services. Client shall pay all charges relating to the
installation and use of such telephone lines and
communications equipment.
B. BISYS shall not be responsible for the reliability, or
continued availability, of telephone lines and
communications equipment used by Client in accessing the
Services.
7. FILE SECURITY AND RETENTION.
A. Any client data bases and files or other information
provided by Client to BISYS for use with the Services (the
"Client Files") shall remain the confidential property of
Client. BISYS will provide reasonable security provisions
to insure that third parties do not have access to the
Client Files. BISYS reserves the right to issue and change
regulations and procedures from time to time to improve file
security. BISYS will instruct its employees having access
to the Client files to keep the same confidential by using
the same care and discretion that XXXXX uses with respect to
its own confidential property.
B. BISYS will take reasonable precautions to prevent the loss
of, or alteration to, Client Files, but BISYS cannot
guarantee against any such loss or alteration. Accordingly,
Client will, to the extent deemed necessary by Client, keep
copies of all source documents of information delivered to
BISYS and will maintain a procedure external to the BISYS
System for the reconstruction of lost or altered Client
Files. In connection with the foregoing, it is understood
that Client shall assume and be responsible for risk of loss
and/or damage to documents and records while they are in
transit to and from the Data Center.
C. During the term of this Agreement, XXXXX will retain the
Client Files in accordance with, and to the extent provided
by XXXXX' then prevailing records retention policies for the
Services, which policies will be consistent with guidelines
covering the Services established by appropriate regulatory
authorities. BISYS will, upon the expiration of any
retention period for Client Files, dispose of Client Files
in any manner deemed appropriate by BISYS unless Client,
prior to such disposal, furnishes to BISYS written
instructions for the disposition of such Client Files at
Client's expense. Client shall pay for the provision of
Client Files to Client at BISYS' standard rates for such
services and BISYS shall provide such Client Files provided
that BISYS has been paid for all Services provided hereunder
through the date such requested Client Files are returned to
Client.
X. XXXXX has a written Disaster Recovery Plan establishing
emergency procedures, including off-premises backup
facility. In connection therewith, XXXXX has prepared a
Disaster Recovery Manual. The Disaster Recovery Plan and
Disaster Recovery Manual are available at the Data Center
for examination by bank auditors and examiners and, as they
may be modified from time to time, will remain in existence
during the term of this Agreement. BISYS shall provide
Client, upon written request, with information necessary for
Client to develop a disaster contingency plan which will
work in concert with BISYS' Disaster Recovery Plan.
8. DUTIES UPON TERMINATION; RETURN OF RECORDS.
A. Upon the termination of this Agreement for any reason, XXXXX
will dispose of all Client Files still in the BISYS System
in any manner deemed appropriate by BISYS unless Client, not
later than 30 days after such termination, furnishes to
BISYS written instructions for the disposition of such
Client Files at Client's expense as set forth in
Paragraph 8(B).
B. At Client's request as set forth in Paragraph 8(A), BISYS
shall delivery to Client all of the Client Files then
retained by BISYS including file layouts and their
descriptions in BISYS format and shall provide in accordance
with BISYS deconversion policies, reasonable and necessary
assistance with the deconversion from the BISYS System to a
non-BISYS system ("Deconversion"). Client shall pay BISYS
for Deconversion assistance in accordance with BISYS' then
current Deconversion rate schedule. Payment for
Deconversion together with all other payments which are due,
and which will become due pursuant to the provisions of this
Agreement shall be paid to BISYS prior to delivery of such
Client Files.
C. Client Files returned to Client shall be in a standard BISYS
machine readable format.
9. OWNERSHIP, USE AND CONFIDENTIALITY; BISYS PRODUCTS AND
CONFIDENTIAL INFORMATION.
A. All computer programs and related documentation made
available, directly or indirectly, by BISYS to Client as
part of the Services (the "BISYS Products") are the
exclusive and confidential property of BISYS or the third
parties from whom XXXXX has secured the right to use such
computer programs and documentation.
B. A personal, non-exclusive, non-transferable right and
license is being granted to Client to use, during the term
of this Agreement, any applications software programs
included in the BISYS Products (the "Application Programs')
which are delivered to Client as part of the Services solely
for Client's own business usage. Client shall not have any
interest in the Applications Programs except for this
limited license.
C. Client shall receive all improvements, enhancements,
modifications and updates to any Applications Programs which
are delivered to Client as part of the Services if, and as,
made available by BISYS to its clients generally. All such
improvements, enhancements, modifications and updates shall
be delivered to Client in the form of a computer
media, which computer media shall be provided to Client by
BISYS and shall be installed by Client. If Client fails to
install any such media within 45 days of its receipt from
BISYS, BISYS shall have no further obligation to provide
Client with improvements, enhancements, modifications or
updates to such Application Programs.
D. Client acknowledges that it shall be deemed a sublicensee of
BISYS for any systems software programs included in the
BISYS Products (the "Systems Programs") which are delivered
to Client as part of the Services. Client accepts a
sublicense from BISYS of the Systems Programs on a personal,
non-exclusive, non-transferable basis with the right to use,
during the term of this Agreement, such Systems Programs
solely in connection with the Services.
E. Client shall not copy in whole or in part any BISYS Products
or related documentation, whether in the form of computer
media, printed or in any other form. Client shall not make
any alteration, change or modification to any BISYS
Products.
F. Client shall treat as confidential and will not disclose or
otherwise make available any of the BISYS Products or any
trade secrets, processes, proprietary data, information or
documentation related thereto including, without limitation,
yany flow charts, logic diagrams or source code
(collectively the "Confidential Information"), in any form,
to any person other than employees of Client. Client will
instruct its employees who have access to the BISYS Products
and the Confidential Information to keep the same
confidential by using the same care and discretion that
Client uses with respect to its own confidential property
and trade secrets. Upon the termination of this Agreement
for any reason, Client shall return to BISYS any and all
copies of the BISYS Products and the Confidential
Information which are in its possession.
10. GOVERNMENTAL AGENCIES.
A. Client shall provide all required notices to the appropriate
regulatory authorities concerning the initiation or
termination of this Agreement, or of any substantial changes
in the Services being provided to Client. XXXXX agrees that
any and all Client Files maintained by it for the Client
pursuant to this Agreement shall be available for inspection
by the appropriate regulatory authorities and Client's
internal auditors and independent public accountants, upon
prior written notice to XXXXX. All costs incurred by BISYS
in the preparation of data for inspection, examination or
audit will be charged to Client at BISYS' then standard
rates for such services.
B. BISYS shall provide annually to the appropriate regulatory
authorities any Third Party Review Reports prepared by
independent public accountants with respect to the Services
performed by XXXXX at the Data Center and copies of BISYS'
audited financial statements. By entering into this
Agreement, XXXXX agrees that it extends to the Office of
Thrift Supervision ("OTS") the same authority and
responsibility (as applicable to Client) provided to the
other regulatory agencies pursuant to the Bank Service
Corporation Act, 12 U.S.C. 1867(C) relating to services
performed by contract or otherwise.
C. If after the date hereof any modifications to the Services
shall be required by law or by any governmental regulatory
authority, BISYS shall, except to the extent such changes
may be beyond the capability of the BISYS System to
implement, conform the Services to be in compliance with
such modified laws or governmental regulations. BISYS may,
at its discretion, pass on, in whole or in part, on an
equitable basis to all users of the Services (including
Client) affected by any such modification the actual costs
incurred by BISYS in making any such modification to the
Services.
11. WARRANTY.
A. BISYS represents and warrants that the Services will conform
materially to their design specifications and user
documentation which may be changed from time to time. This
warranty shall not extend to any of the computer programs,
data basis and/or BISYS supported files used by BISYS in
connection with providing the Services to Client hereunder
which have been altered, changed or modified in any way,
without BISYS' prior written consent in each instance.
B. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
12. LIMITATION OF LIABILITY.
A. The remedies specified in this Agreement constitute Client's
sole and exclusive remedies in the event of any alleged
defaults by BISYS under this Agreement. BISYS' sole
liability, if any, for damages (monetary or otherwise)
resulting from claims made by Client or any third party
arising from or related to any and all causes not covered by
the foregoing remedies shall be limited to the lesser of
(i) the amount of actual damages incurred by Client or
(ii) an amount which shall not exceed the charges paid by
Client during the six (6) month period immediately preceding
the event from which such liability arose for the Services
performed which gave rise to the claim.
B. IN NO EVENT WILL BISYS BE RESPONSIBLE FOR SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES WHICH CLIENT MAY INCUR
OR EXPERIENCE ON ACCOUNT OF ENTERING INTO OR RELYING ON THIS
AGREEMENT, EVEN IF XXXXX HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
13. PATENT AND COPYRIGHT INDEMNIFICATION.
BISYS will hold Client harmless and, at its own expense, will
defend any action brought against Client based on a claim that
the Services used within the scope of this Agreement infringe a
United States patent or copyright provided Client notifies BISYS
promptly in writing of the claim, XXXXX has sole control of the
defense of the action and all negotiations for its settlement or
compromise, and Client cooperates with BISYS in the defense of
the action. In the event any of the Services becomes, or in
BISYS' opinion is likely to become, the subject of a claim of
infringement of patent or copyright, BISYS, at its option, may
(i) secure for Client the right to continue using such
Service(s), (ii) replace or modify such Services to make it or
them non-infringing, (iii) cease providing the affected
Service(s) or (iv) if none of the foregoing options is
commercially reasonable, in BISYS' opinion, terminate this
Agreement. If BISYS exercises its option hereunder to terminate
this Agreement, such termination shall be at no penalty to BISYS
except that BISYS shall provide the Deconversion assistance
described in Paragraph 8(B) at no charge to Client.
14. INSURANCE.
BISYS shall maintain, during the term of this Agreement,
$10,000,000 of coverage under a Blanket Crime Policy covering
fraudulent and dishonest acts committed by its employees for
which it is legally responsible. BISYS shall maintain, on its
own behalf, insurance coverage for loss from fire, disaster, or
other causes contributing to interruption of normal services.
Client, at its own expense, will maintain all insurance and
fidelity bonds required by the applicable regulatory authorities.
15. DEFAULT; REMEDIES UPON DEFAULT.
A. Any of the following events will constitute an "Event of
Default" under the Agreement: (i) non-payment of any amounts
due hereunder to BISYS by Client; (ii) non-performance of
any of Client's or BISYS' other material obligations
hereunder; (iii) if any representation or warranty of Client
or BISYS is materially breached; (iv) if Client or BISYS
files a petition for bankruptcy or becomes the subject of an
involuntary bankruptcy petition which is not vacated within
60 days of filing, or becomes insolvent; or (v) if any
substantial part of Client's or BISYS' property becomes
subject to any levy, seizure, assignment, application or
sale for or by any creditor or governmental agency.
B. Upon occurrence of an Event of Default under the Agreement,
the non-defaulting party may, at its option, terminate this
Agreement provided at least 30 days (or longer period as may
be required by the applicable regulatory authorities) prior
written notice has been given to the other and such default
has not been cured within such period. Upon such
termination by XXXXX, XXXXX may declare all amounts due and
to become due hereunder immediately due and payable. The
remedies contained in this Paragraph 15 are cumulative and
in addition to all other rights and remedies available to
the parties under this Agreement or by operation of law or
otherwise.
16. FORCE MAJEURE.
BISYS shall not be liable or deemed to be in default for any
delay or failure to perform under this Agreement or for
interruption of the Services resulting, directly or indirectly,
from any cause beyond BISYS' reasonable control.
17. GENERAL.
A. BISYS shall provide Client upon written request, copies of
The BISYS Group, Inc.'s (BISYS' parent corporation) current
audited financial statements.
B. Client acknowledges that it has not been induced to enter
into this Agreement by any representation or warranty not
set forth in this Agreement. This Agreement contains the
entire agreement of the parties with respect to its subject
matter and supersedes all existing agreements and all other
oral, written or other communications between them
concerning its subject matter. This Agreement shall not be
modified in any way except by a writing signed by both
parties.
C. The failure by either party hereto to insist upon strict
performance of any of the provisions contained herein shall
in no way constitute a waiver of its rights as set forth
herein, at law or equity, or a waiver by either party of any
other provisions or subsequent default by the other party in
the performance of or compliance with any of the terms and
conditions set forth herein.
D. This Agreement may not be assigned by either party, in whole
or in part, without the prior written consent of the other
which consent shall not be unreasonably withheld. It shall
not be deemed an assignment requiring consent if the stock
of either is sold, or all, or substantially all, of the
assets are sold as long as such sale does not materially
negatively affect the basis of the financial bargain upon
which this Agreement is based as of the date hereof and such
sale does not materially negatively affect the provision of
the Services hereunder. If there is such a negative impact,
then the sale shall be deemed an assignment
requiring consent as set forth above. This Agreement shall
be binding upon and shall inure to the benefit of BISYS and
Client and their respective successors and permitted
assigns.
E. If any provision of this Agreement (or any portion thereof)
shall be held to be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remainder of
this Agreement shall not in any way be affected or impaired
thereby.
F. The headings in this Agreement are intended for convenience
of reference and shall not affect its interpretation.
G. The individuals executing this Agreement on behalf of BISYS
and Client do each hereby represent and warrant that they
are duly authorized by all necessary action to execute this
Agreement on behalf of their respective principals.
H. Client acknowledges that a breach of any of its obligations
under this Agreement relating to the BISYS Products and/or
the Confidential Information will cause BISYS irreparable
injury and damage and therefore may be enjoined through
injunctive proceedings in addition to any other rights or
remedies which may be available to BISYS, at law or in
equity and BISYS grants Client the same rights with respect
to a breach of BISYS' obligations relating to the
confidentiality of Client Files.
I. During the term of this Agreement, neither party hereto
shall, directly or indirectly, solicit or encourage to
leave, any employee of the other without prior written
consent, which consent shall not be unreasonably withheld.
J. By executing this Agreement, the parties agree to extend the
term of any existing written Additional Services Agreements
or authorizations for specific Services to be coterminous
with the terms of this Agreement and to have such agreements
be covered by the terms and provisions hereof.
BISYS, INC. THE FIRST NATIONAL BANK OF LEESPORT
Agreed to: /s/ Xxxxx X. Xxxxxx to: /s/ Xxxxxxx X.
Xxxxxxx Xxxxxxx, Xx.
Name: Xxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Exec. V.P. Title: President/CEO
Date: July 9, 1998 Date: July 3, 1998
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THIS AGREEMENT SHALL BECOME EFFECTIVE UPON BEING SIGNED BY
AUTHORIZED OFFICERS OF XXXXX AND CLIENT. BISYS' MARKETING
REPRESENTATIVES DO NOT HAVE THE AUTHORITY TO BIND XXXXX.
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PAGE 12
ADDENDUM TO SERVICES AGREEMENT NO. CH-2034-07-96
SERVICES AGREEMENT DATED AS OF APRIL 1, 1998
Reference is made to the above Services Agreement between the
undersigned (the "Agreement") to which this Addendum is attached
and made a part thereof.
The Agreement is hereby amended and supplemented as follows:
1. Except as expressly amended and supplemented hereby, all
terms defined in the Agreement shall have the same meanings
when used herein.
2. Term of Agreement.
2.1 If, after the last day of the thirty-sixth month of the
Initial Period, Client is acquired by or merged into
(and is not the surviving entity), a financial
organization which does not have a valid Services
Agreement with BISYS, Client shall have the option to
terminate this Agreement prior to the end of the
Initial Period and such termination will be effective
provided that:
(a) Client provides written notice of its intention to
terminate this Agreement pursuant to this
Paragraph not later than ninety (90) days after
the date following final regulatory approval of
the acquisition or merger by the appropriate
regulatory bodies;
(b) The effective date of termination in Client's
written notice shall not be less than 180 days
after the date of such notice;
(c) Client shall pay BISYS for all Services provided
by XXXXX through the effective date of
termination, including all pass-through charges;
(d) Based on the month during which the effective date
of termination occurs, Client shall pay BISYS an
amount equal to (x) the average one month charges
for Services based on the twelve (12) months
immediately preceding the effective date of
termination, times (y) the number of months
remaining in the Initial Period, times (z) thirty
percent (30%).
(e) Client shall pay for all Deconversion assistance
in accordance with Paragraph 9(B) of the
Agreement; and
(f) All payments must be made prior to delivery of
Client Files.
3. Charges.
3.1 Section 3 of the Agreement is amended by inserting the
following new Paragraphs after Paragraph 3(D):
"E. For purposes of this Agreement, the following
definitions shall apply:
"Client Accounts" shall include, but not be
limited to, deposit and loan accounts on the BISYS
System, including, but not limited to Savings
Accounts-Account Base, Time Deposits/Certificates
of Deposits Accounts-Account Base, Transaction
Accounts-Account Base (including DDA, MMDA, NOW,
SUPER NOW, Money Market), Line of Credit Accounts-
Account Base, Mortgage Loans-Account Base,
Construction Loans-On Line History, Commercial
Loans-Account Base, Installment Loans-Account
Base, Adjustable Installment Loans, Commercial
Loan Processing, Construction/Commercial Loan
Control Accounts - Construction Loans,
Construction/Commercial Loan Control Accounts
Commercial Loans.
"Exhibit A Services" shall mean the Services
identified on attached Exhibit A (both the
Standard Services and Special Services listed on
Exhibit A). The parties agree that included in
the definition of Exhibit A Services are Client
usage of any features associated with the Services
listed on the Standard Services portion of
Exhibit A which features are in existence and
available to Client as of the date of this
Addendum. Neither features, nor Services, listed
on the Price Lists as of the date hereof, but not
set forth on Exhibit A shall be deemed to be part
of the Exhibit A Services and such other Services
and/or fees shall be billed to Client in
accordance with the provisions of Paragraph 3(G)
below, The parties also agree that Exhibit A
Services are recurring Services and do not include
any installation charges, training charges, one-
time license fees or any other one-time charges.
"Exhibit B Services" shall mean the Services
identified on attached Exhibit B.
"One Year Period" shall mean each twelve (12)
calendar month period commencing Initiation Date
and the indication as to which twelve (12) month
period is indicated will be with the addition of
an ordinal number preceding the term One
Year period, e.g., First One Year Period, Second
One Year Period, etc.
"F. For any and all Client usage of the Exhibit A
Services, Client shall pay BISYS a fixed monthly
charge (the "Fixed Monthly Charge"), calculated as
follows:
(1) On Initiation Date, BISYS will determine the
average monthly number of Client Accounts
based on the number of Client Accounts on the
BISYS System during the twelve month period
immediately preceding the Initiation Date
(the "Base Accounts"). The Fixed Monthly
Charge for the First One Year Period will be
calculated as follows: (x) the number of Base
Accounts times (y) $0.41 Per Client Account.
(2) At the end of each One Year Period, XXXXX
will determine the average monthly number of
Client Accounts during the immediately
preceding One Year Period and compare that
number to the number of Base Accounts to
determine the percentage growth in the number
of Client Accounts (the "Percentage Growth").
XXXXX agrees that Client will only be charged
for the number of Client Accounts which
represent the Percentage Growth in five
percent increments in accordance with the
pattern set forth below. Accordingly, the
Fixed Monthly Charge for the next One Year
Period will be calculated as (x) he number of
Client Accounts which represent chargeable
Percentage Growth, times (y) $0.41 (the "Per
Account Fee"), plus (z) the then current
Fixed Monthly Charge.
Percentage Growth Per Account Fee
0 to 5% $0.41
5% to 10% No Charge
10% to 15% $0.41
15% to 20% No Charge
20% to 25% $0.41
(3) The Fixed Monthly Charge may be adjusted at
any time during a One Year Period, if Client
acquires any additional assets, liabilities
or serviced accounts from a financial
organization (the "Acquired Accounts").
Commencing on the first day of the third full
calendar month following the conversion of
the Acquired Accounts to the BISYS System,
BISYS will add the number of Acquired
Accounts to the most current number
of Year End Accounts and adjust the Fixed
Monthly Charge to reflect the higher number
of Client Accounts on the BISYS System.
(4) During the first three One Year Periods, the
Per Account Fee will not be changed.
Commencing on the first day of the Fourth One
Year Period, BISYS will increase the Per
Account Fee by an amount equal to the lesser
of (i) four percent (4%) or (ii) the
percentage increase in the United States
Consumer Price index as published by the
Bureau of Labor Statistics, United State
Department of Labor ("CPI"), during the
twelve month period immediately preceding the
date of increase, provided however, that if
on the first day of the Fourth and Fifth One
Year Periods, the Percentage Growth in the
number of Client Accounts compared to the
number of Base Accounts is greater than
twenty percent (20%), then the Per Account
Fee will not be increased.
"G. In addition to the Fixed Monthly Charge, Client
will pay BISYS each month for:
(1) All usage of Services not set forth on
Exhibit A; and
(2) All pass-through charges, including but not
limited to telecommunication charges, courier
charges and postage charges.
"H. The pricing for the Exhibit B Services as set
forth on Exhibit B will be available to Client
provided that Client enters into an Additional
Services Agreement ("ASA") with respect to such
Services and installation of such Services is
completed by the respective dates set forth below.
Installation
Service ASA signed by Complete by
EncorePlus 12/31/98 05/31/99
EasyLender 06/30/98 10/31/98
Internet Home Banking 12/31/98 06/30/98
In the event the conditions set forth above are
not met, the pricing for such Services shall be
the then applicable standard list price."
3.2 During the Initial Period, XXXXX agrees to grant Client
a credit in the amount of $150,000.00 to be applied, at
Client's discretion, against (x) monthly
recurring charges for Exhibit A and Exhibit B Services
and/or (y) one-time implementation charges or monthly
recurring charges associated with Client's purchase and
utilization of new Services after the Initiation Date,
provided, in each case however, that (i) any
application of this credit against recurring charges
set forth on the Monthly Invoice cannot exceed $1
0,000.00 per month, (ii) any application of this credit
against one-time charges associated with new Services
cannot exceed 50% of such one-time charge, and
(iii) the credit cannot be applied against charges for
hardware, equipment and pass-through charges.
3.3 During the Initial Period, BISYS' Conversion Services
shall be provided to Client at no charge for the
conversion to the BISYS System of Acquired Accounts
associated with future financial organization assets
acquired by Client ("Acquired Assets"), provided that
the data and files from such future merged
organizations are in machine readable form, readable by
BISYS' computers at the BISYS Center. Client does,
however, agree to pay in full all out-of-pocket
conversion related expenses not included in BISYS'
provided standard conversion services, including but
not limited to, data communications, terminal equipment
charges and reasonable travel, lodging and meals
expense.
3.4 During the Initial Period, XXXXX agrees to grant Client
a non-cumulative annual credit in the amount of
$1,000.00 to be applied against the charges associated
with Client's attendance at BISYS University training
courses.
3.5 XXXXX agrees to grant Client a non-cumulative monthly
credit in the amount of $450.00 to be applied against
the recurring charges associated with Client's
utilization of TargetPlus Report Writer.
3.6 XXXXX agrees that the initial charges for the
AddressPlus service will be as follows:
$0.03 per Client Account
$800.00 minimum per run
3.7 During the Initial Period, XXXXX agrees to waive the
recurring charges for the services set forth below:
- TOTALPLUS Currency Report
- Annual Updates to Geocodes and Lifestyles
Codes relative to the Total Marketing Manager
Service
- TOTALPLUS Manuals (two sets) and Product
Upgrade subscriptions for such sets
3.8 XXXXX agrees to waive the registration fees associated
with the attendance of two Client representatives at
the BISYS Annual Client Conference, provided however,
that Client shall be responsible for travel and lodging
expenses it incurs associated with its attendance at
the conference.
4. Total Marketing Manager ("TMM").
4.1 XXXXX agrees that the initial recurring charges for
Client's utilization of TMM will be as follows:
Number of Client Accounts Per Account Charge
0 to 25,000 $0.030
25,001 to 75,000 $0.025
More than 75,000 $0.020
5. Showcase Credit.
5.1 During the Initial Period, Client agrees to assist
XXXXX in the growth of BISYS by acting as a "showcase"
site for prospective clients, accordingly, XXXXX agrees
to give Client a monthly non-cumulative credit in the
amount of $6,000.00. In consideration of such credit,
Client will provide appropriate access to its equipment
and processes used to employ the BISYS System and
appropriate support to BISYS in the sales and marketing
of the BISYS System or the TotalCS System (as defined
below) and related products and services in connection
with any "showcase" visits. For such period as the
termination option described in Section 2.2 hereof
remains in effect and, if exercised, through the
effective termination date of the Agreement, the credit
shall be reduced to $2,400.00.
6. TotalCS.
6.1 If after the Second One Year Period, Client elects to
transition from the BISYS System to an alternative
BISYS provided system (the "TotalCS System"), Client
must provide BISYS with at least 180 days prior written
notice of its intention to convert to the TotalCS
System. XXXXX agrees to provide support necessary to
facilitate Client's transition to the TotalCS System,
provided, however, Client pays BISYS for all out-of
pocket costs incurred by BISYS associated with Client's
transition to the TotalCS System. At the time Client
commences utilizing the TotalCS System, XXXXX agrees
that the Services utilized by Client on the
current BISYS System will be provided to Client by
BISYS on the TotalCS System in accordance with the
terms and conditions set forth in this Agreement.
During the first 180 days following Client's transition
to the TotalCS System, BISYS and Client will review
the terms and conditions of this Agreement and
Addendum to determine if such terms and conditions are
applicable to the delivery of the services by the
TotalCS System.
7. New BISYS Services.
7.1 XXXXX agrees to participate in presentations to
Client's senior management, the purpose of which is to
provide Client with an update on new BISYS Services and
Products. These presentations will occur on at least a
quarterly basis during the Initial Period.
8. Year 2000.
8.1 XXXXX agrees to perform, at BISYS' expense,
comprehensive tests on the BISYS System to simulate the
actual turning of the century. These tests shall be
intended to identify any operational issues caused by
the century change at midnight December 31, 1999.
XXXXX agrees to release by December 31, 1998, all
necessary updates and changes for the BISYS System, if
any, to accommodate the turn of the century. XXXXX
agrees to distribute any such change or updates to the
BISYS System when they are generally made available to
its clients. Such distribution may be in the form of
new releases, updates or other similar methods of
distributing software bug fixes as BISYS may see fit.
All modifications, updates or changes made by BISYS
shall be to the BISYS System only and not to any third
party provided software.
8.2 In the event BISYS fails to release by December 31,
1998 all necessary updates and changes for the BISYS
System, if any, to accommodate the turn of the century,
Client shall be entitled to a refund of the $25,000 fee
paid by Client to participate in the BISYS Y2K testing
program and may elect to convert to the TotalCS System
by providing written notice of such election to BISYS
by March 31, 1999. The parties would thereupon use all
commercially reasonable efforts to complete such
conversion by October 1999. The provisions of
Paragraph 6.1 of this Addendum shall apply to such
conversion.
9. Neither BISYS nor Client shall (except to persons on behalf
of such party) disclose, and neither party shall permit any
of its employees or other persons who act or acted in its
behalf to disclose, any of the terms and
conditions of the Agreement, including without limitation
any Addendum or pricing terms, except as may be required by
law.
Except as expressly amended and supplemented hereby, the
Agreement shall remain unchanged and continue to be in full force
and effect.
This Addendum supersedes and replaces any prior agreement
(written or oral) as to its subject matter. If there is any
conflict between the terms and conditions of this Addendum and
the terms and conditions of the Agreement or any prior addendum
to this Agreement, the Terms and Conditions of this Addendum
shall prevail.
BISYS, INC. THE FIRST NATIONAL BANK OF LEESPORT
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
Name: Xxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Executive VP Title: President/CEO
Date: July 9, 1998 Date: July 3, 1998
----------------------------------------------------------------
THIS ADDENDUM SHALL BECOME EFFECTIVE UPON BEING SIGNED BY AN
AUTHORIZED OFFICER OF XXXXX. BISYS' MARKETING REPRESENTATIVES DO
NOT HAVE THE AUTHORITY TO BIND XXXXX.
----------------------------------------------------------------
PAGE 20
THE FIRST NATIONAL BANK OF LEESPORT
EXHIBIT A
Savings, Time Deposits/Certificates of Deposits
On-Line History
Savings and CD Accounts
CDs Term History (term + 1 month or 24 months)
IRA CDs (term + 1 month or 24 months)
Retirement Accounts
Retirement Account Statements
Interest Checks
CD Renewal Confirmation
Currency Reporting
Statement Production
Variable Interest Rate Processing
Interest on Lawyer Trust Accounts
Anniversary Processing
Tax Compliance Withholding
Savings Service Charges
Tenant Rent Processing
Realty Trust Processing
DDA, MMDA, NOW, SUPER NOW, MONEY MARKET
Interactive Exception Handling Items Updated
DDA Accounts
DDA Statement Production
Check Register on Statement
DDA Transactions
Line-of-Credit Processing
Automatic LOC Disbursement
Variable Interest Rate Processing
DDA Statement Production, over 6 months
Statement Rendering Transmissions
Overdraft Reminder Notices
Account Analysis
Combined Statements/Financial Summary
Account Reconciliation Processing (excluding Disc Recon.)
NSF/UCF Qualification Report
Sweep Accounts
Snapshot/Reset Statements
Daily Deposit Activity Accounts
Mortgage Loans
On-Line History (18 months)
Investor Reporting
M/L Accounts with MICR/OCR Coupons
Tax & Insurance System
Adjustable Rate Mortgages/Notices
AML Reminder Notice Worksheet
M/L Deferred Fee/Cost Accounts
Rate Change Notices
Interest on Escrow
Extra ML Trial Balance Runs
History Cards
Loan Commitment Processing
Escrow Processing
GL and DDA Investor Transactions
Construction Loans
Installment Loan Processing
Installment Loan Accounts
On-Line Histories (18 months)
Coupon Loans MICR/OCR
Customer Notices and Billings
Dealer Reporting/Floor Planning Accounting
Consumer/Savings Account Loans
IL Deferred Fee/Cost Accounts
Overdraft/LOC Loan Notice
History Cards
Student Loan Processing
Simple Interest Loans by Rate Report
Commercial Loan Processing
Commercial Loan Notes
CL Deferred Fee/Cost Accounts
CIF Processing, including On-Line Memo Processing
Miscellaneous
ACH Transactions
Automatic Withholding Accounts
Credit Bureau Reporting
On-Line File Maintenance
Transaction Processing Notices
Extra M/L Trial Balance Runs
I/L classification Reports
I/L Classification Accounts Reported
Test Bank
Van Wagon Tapes
Annual Purge of Card Management System records
Exception Item Pull
Daily Activity File
Annual Maintenance fee for TIPS Plus
Mortgage Loan Accounts
Automated Letters
Totalmatic Accounts
Totalmatic Paper Drafts
Internal Transfers/External Drafts
ACHIPS
FHLB Collateral Accounts
PAGE 22
THE FIRST NATIONAL BANK OF LEESPORT
EXHIBIT B
Service One Time Charges
Encore Plus! Base Fee $12,000.00
Encore Plus Workstation Fee $ 100.00 per seat
Internet Home Banking Base Fee $15,000.00
EasyLender for Windows Base License Fee $12,500.00
EasyLender workstation license $ 397.50
(includes up to 6 laptops)
EasyLender database software $ 60.00
(includes up to 6 laptops)
EasyLender Training $ 3,750.00
Monthly
Service Recurring Charges
Encore Plus Teller $ 40.00 per seat
Encore Plus Platform $ 65.00 per seat
Encore Plus Query & Maintenance $ 30.00 per seat
Internet Home Banking Base Fee $500.00
Internet Home Banking $ 3.00 per end user
Internet Home Banking $ 0.29 per bill
payment
transaction
EasyLender for Windows $535.00
(for up to 6 workstations, including)
EasyLender $ 50.00
(workstation connection for upload)
