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EXHIBIT 10.9
OUTSOURCING AGREEMENT
BY AND BETWEEN
Lehigh Acres First National Bank
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
acting through its division
M&I DATA SERVICES
DATED AS OF
_________________, 1999
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TABLE OF CONTENTS
Page
1. DEFINITIONS ...................................................................... 5
1.1 Background ..................................................................... 5
1.2 Definitions .................................................................... 5
1.3 References ..................................................................... 10
1.4 Interpretation ................................................................. 11
2. TERM ............................................................................. 11
2.1 Initial Term ................................................................... 11
2.2 Extensions ..................................................................... 11
3. APPOINTMENT ...................................................................... 12
3.1 Performance by M&I Affiliates or Subcontractors ................................ 12
3.2 Third Party Products/services .................................................. 12
3.3 Proper Instructions ............................................................ 12
4. CONVERSION ....................................................................... 12
4.1 Banking Applications ........................................................... 12
4.2 Development of Conversion Plan ................................................. 13
4.3 Conversion Resources ........................................................... 13
4.4 Conversion Milestones .......................................................... 13
5. BANKING APPLICATION SERVICES ..................................................... 13
5.1 ADP Services ................................................................... 13
5.2 New Services ................................................................... 13
5.3 Automated Clearing House Services .............................................. 14
5.4 Data Warehouse Services ........................................................ 14
5.5 Item Processing Services ....................................................... 14
6. RETAIL DELIVERY SYSTEMS AND SERVICES ............................................. 15
6.1 Branch Automation Systems ...................................................... 15
7. BANKCARD PROCESSING SERVICES ..................................................... 15
7.2 EFD Services ................................................................... 15
8. FEES ............................................................................. 15
8.1 Fee Structure .................................................................. 15
8.2 Conversion ..................................................................... 16
8.3 Pricing and Operational Assumptions ............................................ 16
8.4 EFD Services ................................................................... 16
8.5 Training and Education ......................................................... 17
8.6 Excluded Costs ................................................................. 17
8.7 Disputed Amounts ............................................................... 17
8.8 Terms of Payment ............................................................... 18
8.9 Modification of Terms and Pricing .............................................. 18
9. PERFORMANCE WARRANTY/EXCLUSIVE REMEDY/
DISCLAIMER OF ALL OTHER WARRANTIES ............................................... 18
9.1 Performance Warranty ........................................................... 18
9.2 Performance Warranty Exclusions ................................................ 18
9.3 Notice of and Correction of Defects ............................................ 19
9.4 Backup Remedy .................................................................. 19
9.5 DISCLAIMER OF ALL OTHER WARRANTIES ............................................. 19
10. MODIFICATION OR PARTIAL TERMINATION .............................................. 19
10.1 Modifications to Services ...................................................... 20
10.2 Partial Termination by M&I ..................................................... 20
10.3 Partial Termination by Customer ................................................ 20
10.4 Ownership and Proprietary Rights ............................................... 20
10.5 Millennium Modifications ....................................................... 21
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11. TERMINATION ...................................................................... 21
11.1 Early Termination .............................................................. 21
11.2 For Cause ...................................................................... 21
11.3 For Insolvency ................................................................. 21
11.4 For Force Majeure .............................................................. 22
12. SERVICES FOLLOWING TERMINATION ................................................... 22
12.1 Termination Assistance ......................................................... 22
12.2 Continuation of Services ....................................................... 22
13. LIMITATION OF LIABILITY/MAXIMUM DAMAGES ALLOWED .................................. 23
13.1 Equitable Relief ............................................................... 23
13.2 Exclusion of Incidental and Consequential Damages .............................. 23
13.3 Maximum Damages Allowed ........................................................ 23
13.4 Statute of Limitations ......................................................... 23
13.5 Economic Loss Waiver ........................................................... 24
13.6 Liquidated Damages ............................................................. 24
13.7 Essential Elements ............................................................. 24
14. INSURANCE AND INDEMNITY .......................................................... 24
14.1 Insurance ...................................................................... 24
14.2 Indemnity ...................................................................... 25
14.3 Indemnification Procedures ..................................................... 25
15. DISPUTE RESOLUTION ............................................................... 26
15.1 Representatives of Parties ..................................................... 26
15.2 Continuity of Performance ...................................................... 27
16. REPRESENTATIONS AND WARRANTIES ................................................... 27
16.1 By M&I ......................................................................... 27
16.2 By Customer .................................................................... 27
17. CONFIDENTIALITY AND OWNERSHIP .................................................... 28
17.1 Customer Data .................................................................. 28
17.2 M&I Systems .................................................................... 28
17.3 Confidential Information ....................................................... 28
17.4 Obligations of the Parties ..................................................... 29
17.5 Security ....................................................................... 29
18. MANAGEMENT OF PROJECT ............................................................ 29
18.1 Account Representatives ........................................................ 29
18.2 Reporting and Meetings ......................................................... 30
18.3 Development Projects and Technical Support ..................................... 30
19. REGULATORY COMPLIANCE ............................................................ 30
20. DISASTER RECOVERY ................................................................ 31
20.1 Services Continuity Plan ....................................................... 31
20.2 Relocation ..................................................................... 31
20.3 Resumption of Services ......................................................... 32
20.4 Annual Test .................................................................... 32
21. GENERAL TERMS AND CONDITIONS ..................................................... 32
21.1 Transmission of Data ........................................................... 32
21.2 Equipment and Network .......................................................... 32
21.3 Reliance on Data ............................................................... 32
21.4 Data Backup .................................................................... 33
21.5 Balancing and Controls ......................................................... 33
21.6 Use of Services ................................................................ 33
21.7 Regulatory Assurances .......................................................... 33
21.8 IRS Filing ..................................................................... 35
21.9 Affiliates ..................................................................... 35
21.10 Future Acquisitions ............................................................ 35
22. MISCELLANEOUS PROVISIONS ......................................................... 36
22.1 Governing Law .................................................................. 36
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22.2 Venue and Jurisdiction ......................................................... 36
22.3 Entire Agreement; Amendments ................................................... 36
22.4 Assignment ..................................................................... 37
22.5 Relationship of Parties ........................................................ 37
22.6 Notices ........................................................................ 37
22.7 Headings ....................................................................... 38
22.8 Counterparts ................................................................... 38
22.9 Waiver ......................................................................... 38
22.10 Severability ................................................................... 38
22.11 Attorneys' Fees and Costs ...................................................... 39
22.12 Financial Statements ........................................................... 39
22.13 Publicity ...................................................................... 39
22.14 Solicitation ................................................................... 39
22.15 No Third Party Beneficiaries ................................................... 39
22.16 Force Majeure .................................................................. 39
22.17 Construction ................................................................... 40
22.18 Waiver of Jury Trial ........................................................... 40
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Schedules
1.2 Customer Affiliates
4.2 Conversion Plan
5.1 ADP Services Schedule
5.3 ACH Services Terms and Conditions
5.4 Data Warehouse Services
5.5 Item Processing Services
7.1 EFD Services
8.1 Fee Schedule
9.1 ADP Performance Standards
11.1 Termination Fee
21.2 Network Schedule
Exhibits
A ACH Authorization Agreement
B Attorney-in-Fact Appointment
C Affidavit
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OUTSOURCING AGREEMENT
This Outsourcing Agreement ("Agreement") is made as of the _______ day
of ___________, 1999, by and between Lehigh Acres First National Bank, a
_____________ corporation ("Customer") and ▇▇▇▇▇▇▇▇ & Ilsley Corporation, a
Wisconsin corporation, acting through its division, M&I Data Services ("M&I").
In consideration of the payments to be made and services to be
performed hereunder, the parties agree as follows:
1. DEFINITIONS
1.1 Background.
This Agreement is being made and entered into with reference to the
following facts:
A. Customer provides systems development and operations, data
processing, telecommunications and other information technology services for
itself, and on behalf of its customers.
B. M&I is a provider of data processing, systems development
and operations, corporate support and item processing, home banking, internet
banking, retail delivery services, trust data processing, and other services.
M&I desires to perform for Customer the outsourcing services described in this
Agreement.
C. In reliance on its own independent analysis, and after
careful evaluation of M&I's proposal and other alternatives, Customer has
selected M&I to provide the Services (as defined in Section 1.2) to Customer.
This Agreement documents the terms and conditions under which Customer agrees to
purchase and M&I agrees to provide the Services.
1.2 Definitions.
The following terms shall have the meaning ascribed to them in this
Section 1.2:
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A. "Account Representative" shall have the meaning set forth
in Section 18.1.
B. "ADP Services" shall mean the Accounts Data Processing
Services set forth in attached Schedule 5.1.
C. "Affiliate," shall mean, with respect to a party, any
Entity at any time Controlling, Controlled by or under common Control with, such
party.
D. "Branch Automation Agreement" shall mean the Branch
Automation Agreement of even date herewith between M&I and Customer relating to
the license and implementation of M&I's proprietary branch automation software.
E. "CPI", as defined by the United States Department of Labor,
shall mean the Consumer Price Index-All Items Urban, less food and energy (or
any successor index).
F. "Change in Control" shall mean any event or series of
events by which (i) any person or entity or group of persons or entities shall
acquire Control of another person or entity or (ii) in the case of a
corporation, during any period of 12 consecutive months commencing before or
after the date hereof, individuals who at the beginning of such 12-month period
were directors of such corporation shall cease for any reason to constitute a
majority of the board of directors of such corporation.
G. "Commencement Date" shall mean the date, on which
Conversion for Customer and all Affiliates identified on Schedule 1.2 has been
completed.
H. "Confidential Information" shall have the meaning set forth
in Section 17.3 of this Agreement.
I. "Contract Year" shall mean successive periods of twelve
months, the first of which (being slightly longer than twelve (12) months) shall
commence on the Commencement Date and terminate on the last day of the month in
which the first anniversary of the Commencement Date occurs.
J. "Control" shall mean the direct or indirect ownership of
over 50% of the capital stock (or other ownership interest, if not a
corporation) of any Entity or the possession, directly or indirectly, of the
power to
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direct the management and policies of such Entity by ownership of voting
securities, by contract or otherwise. "Controlling" shall mean having Control of
any Entity and "Controlled" shall mean being the subject of Control by another
Entity.
K. "Conversion" shall mean (i) the transfer of Customer's data
processing and other information technology services to the M&I system; (ii)
completion of upgrades, enhancements and software modifications as set forth in
this Agreement; and (iii) completion of all interfaces set forth in this
Agreement and full integration thereof such that Customer is able to receive the
Initial Services in a live operating environment.
L. "Conversion Date" shall mean the date on which Conversion
for Customer or a particular Affiliate has been completed. Schedule 1.2
identifies the Conversion Date for Customer and each Affiliate identified
therein.
M. "Conversion Period" shall mean that portion of the Term
beginning on the Effective Date and ending on the Conversion Date.
N. "Core Services" shall mean services provided by M&I's
Deposit System, Loan System and Customer Information System.
O. "Customer" shall mean Customer and all Affiliates of
Customer for whom M&I agrees to provide Services under this Agreement; Schedule
1.2, attached hereto identifies such Affiliates as of the Effective Date.
P. "Customer Data" shall have the meaning set forth in Section
17.1 of this Agreement.
Q. "Effective Date" shall mean the date first set forth above.
R. "Effective Date of Termination" shall mean the last day on
which M&I provides the Services to Customer (including any Termination
Assistance).
S. "Eligible Provider" shall have the meaning as set forth in
Section 3.1 of this Agreement.
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T. "Entity" means an individual or a corporation, partnership,
sole proprietorship, limited liability company, joint venture or other form of
organization, and includes the parties hereto.
U. "Estimated Remaining Value" shall mean the number of
calendar months remaining between the Effective Date of Termination and the last
day of the contracted-for Term, multiplied by the average of the three (3)
highest monthly Fees (but in any event no less than the Monthly Base Fee)
payable by Customer during the twelve (12) month period prior to the event
giving rise to termination rights under this Agreement. In the event the
Effective Date of Termination occurs prior to expiration of the First Contract
Year, the estimated monthly fees set forth in the Fee Schedule shall be
substituted for the average monthly fees described in the preceding sentence.
V. "Expenses" shall mean any and all reasonable and direct
expenses incurred by M&I for any postage, supplies, materials, travel and
lodging provided to or on behalf of Customer under this Agreement.
W. "Federal Regulator" shall have the meaning set forth in
Section 21.7.
X. "Fee Schedule" shall have the meaning set forth in Section
8.1 of this Agreement.
Y. "Initial Services" shall mean those Services requested by
Customer from M&I under this Agreement prior to the Commencement Date. The
Initial Services requested as of the Effective Date are set forth in the
schedules attached hereto, which shall be modified to include any additional
services requested by CUSTOMER during the Conversion Period.
Z. "Initial Term" shall have the meaning set forth in Section
2.1 of this Agreement.
AA. "Legal Requirements" shall have the meaning set forth in
Section 19(A) of this Agreement.
BB. "LU" shall have the meaning as set forth in Section 8.6 of
this Agreement.
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CC. "M&I Proprietary Materials and Information" shall mean the
M&I Software and all source code, object code, documentation (whether
electronic, printed, written or otherwise), working papers, non-customer data,
programs, diagrams, models, drawings, flow charts and research (whether in
tangible or intangible form or in written or machine readable form), and all
techniques, processes, inventions, knowledge, know-how, trade secrets (whether
in tangible or intangible form or in written or machine readable form),
developed by M&I prior to or during the Term of this Agreement, and such other
information relating to M&I or the M&I Software that M&I identifies to Customer
as proprietary or confidential at the time of disclosure.
DD. "M&I Software" shall mean the software owned by M&I and
used to provide the Services.
EE. "Millennium Ready" shall mean the ability of the M&I
Software to accurately process date/time data (including calculating, compare
and sequence) from, into and between the years 1999 and 2000, including leap
year calculations, to the extent that other information technology, used in
combination therewith, properly exchanges date/time data with the M&I Software.
FF. "Monthly Base Fee" shall mean the minimum monthly fees
payable by Customer to M&I for those Initial Services identified in the ADP
Services Schedule or the Fee Schedule as being included in the Monthly Base Fee.
GG. "New Services" shall mean any services which are not
included in the Initial Services. Upon mutual agreement of the parties, New
Services shall be included in the term "Services.
HH. "Operations Center" shall mean the datacenter used by M&I
to provide the ADP Services under this Agreement.
II. "Performance Standards" shall mean those service levels
set forth in attached Schedule 9.1 for the provision of ADP Services.
JJ. "Performance Warranty" shall have the meaning, including
the exclusions and exclusive remedy, set forth Article 9 of this Agreement.
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KK. "Plan" shall have the meaning set forth in Section 20.1 of
this Agreement.
LL. "Proper Instructions" shall mean those instructions sent
to M&I in accordance with Section 3.3 of this Agreement.
MM. "Services" shall mean the services, functions and
responsibilities described in this Agreement to be performed by M&I during the
Term and shall include New Services which are agreed to by the parties in
writing.
NN. "Taxes" shall mean any manufacturers, sales, use, gross
receipts, excise, personal property or similar tax or duty assessed by any
governmental or quasi-governmental authority upon or as a result of the
execution or performance of any service pursuant to this Agreement or materials
furnished with respect to this Agreement, except any income, franchise,
privilege or like tax on or measured by M&I's net income, capital stock or net
worth.
00. "Term" shall mean the Initial Term and any extension
thereof, unless this Agreement is earlier terminated in accordance with its
provisions.
PP. "Termination Assistance" shall have the meaning set forth
in Section 12.1 of this Agreement.
QQ. "Termination Feel" shall have the meaning set forth on
attached Schedule 11.1.
RR. "Third Party" shall mean any Entity other than the parties
or any Affiliates of the parties.
SS. "User Manuals" shall mean the documentation provided by
M&I to Customer which describes the features and functionalities of each of the
ADP Services as modified and updated by the customer bulletins distributed by
M&I from time to time.
1.3 References. In this Agreement and the schedules and exhibits
attached hereto, which are hereby incorporated and deemed a part of this
Agreement, references and mention of the word "include" and "including" shall
mean "includes,
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without limitation" and "including, without limitation", as applicable.
1.4 Interpretation. In the event of a conflict between this
Agreement and the terms of any exhibits and schedules attached hereto, the terms
of the schedules and exhibits shall prevail and control the interpretation of
the Agreement. The exhibits and schedules together with the Agreement shall be
interpreted as a single document.
2. TERM
2.1 Initial Term. This Agreement shall commence on the Effective
Date and end on the seventh (7th) anniversary of the last day of the month in
which the Commencement Date occurs ("Initial Term").
2.2 Extensions. Unless this Agreement has been earlier terminated,
at least one (1) year prior to the expiration of the Initial Term, M&I shall
submit to Customer a written proposal for renewal of this Agreement. Customer
will respond to such proposal within three (3) months following receipt and
inform M&I in writing whether or not Customer desires to renew this Agreement.
If M&I and Customer are unable to agree upon the terms for renewal of this
Agreement at least six (6) months prior to the expiration of the Initial Term,
then this Agreement shall be automatically renewed for one (1) twelve-month
period at M&I's then-current standard prices. Thereafter, this Agreement shall
expire unless further renewed in writing by the parties.
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3. APPOINTMENT
3.1 Performance by M&I Affiliates or Subcontractors. Customer
understands and agrees that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation is a bank holding
company and that the actual performance of the Services may be made by the
divisions or subsidiaries of ▇▇▇▇▇▇▇▇ & Ilsley Corporation, Affiliates
Controlled by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation, or subcontractors of any of the
foregoing Entities (collectively, the "Eligible Providers"). For purposes of
this Agreement, performance of the Services by any Eligible Provider shall be
deemed performance by ▇▇▇▇▇▇▇▇ & Ilsley Corporation itself. M&I shall remain
fully responsible for the performance or non-performance of each Eligible
Provider under this Agreement, to the same extent if M&I itself performed or
failed to perform such services.
3.2 Third Party Products/Services. The parties acknowledge that
certain services and products necessary for the performance of the Services are
being, and in the future may be, provided by Third Parties who will contract
directly with Customer. M&I shall have no liability to Customer for information
and products supplied by, or services performed by, such Third Parties in
conjunction with the Services.
3.3 Proper Instructions. "Proper Instructions" shall mean those
instructions sent to M&I by letter, memorandum, telegram, cable, telex, telecopy
facsimile, computer terminal, e-mail or other "on line" system or similar means
of communication or given orally over the telephone or given in person by one or
more of the person(s) whose name(s) and signature(s) are listed on the most
recent certificate delivered by Customer to, M&I which lists those persons
authorized to give orders, corrections and instructions in the name of and on
behalf of Customer. Proper Instructions shall specify the action requested to be
taken or omitted.
4. CONVERSION
4.1 Implementation of Services. The parties agree to use their
best efforts to perform the Conversion(s) such that the Commencement Date occurs
on or before ________________, _____.
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4.2 Development of Conversion Plan. M&I has, in consultation with
Customer, developed a detailed, customized plan for the Conversion (the
"Conversion Plan"). The Conversion Plan includes (i) a description of the tasks
to be performed for the Conversion; (ii) allocation of responsibility for each
of such tasks; and (iii) the schedule on which each task is to be performed. The
Conversion project leaders for each party shall regularly communicate on the
progress of the Conversion, the feasibility of the Conversion Dates specified in
the Conversion Plan, and such other matters which may affect the smooth
transition of the Services. Customer agrees to maintain an adequate staff of
persons who are knowledgeable about the banking, data processing and information
technology systems currently used by Customer. Each party agrees to provide such
services and to perform such obligations as are specified as its responsibility
in the Conversion Plan and as necessary for it to timely and adequately meet the
scheduled dates set forth therein. Each party shall cooperate fully with all
reasonable requests of the other party made necessary to effect the Conversion
in a timely and efficient manner. The preliminary Conversion Plan is attached
hereto as Schedule 4.2 and may be amended by mutual agreement of the parties.
4.3 Conversion Resources. M&I and Customer will provide a team of
qualified individuals to assist in the Conversion effort. The anticipated team
and description of their responsibilities is set forth in the Conversion Plan.
4.4 Conversion Milestones. As part of the Conversion Plan, the
parties shall develop and agree upon milestones to which the progress of the
Conversion(s) shall be measured.
5. BANKING APPLICATION SERVICES
5.1 ADP Services. M&I agrees to provide Customer with the ADP
Services in accordance with the applicable User Manuals and this Agreement.
5.2 New Services. If Customer wishes to receive any New Service
which is identified on M&I's then-current standard price list, Customer shall
notify M&I and the parties shall implement the same in accordance with a
mutually acceptable schedule. If the New Service is not
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identified on M&I's then-current standard price list, Customer shall submit a
written request to M&I in accordance with Section 18.3 of this Agreement.
Nothing contained herein shall obligate M&I to develop a New Service for
Customer.
5.3 Automated Clearing House Services. The automated clearing
house services ("ACH Services") to be provided by M&I shall be subject to the
terms and conditions set forth on attached Schedule 5.3.
5.4 Data Warehouse Services. The Data Warehouse Services to be
provided by M&I shall be subject to the terms and conditions set forth on
attached Schedule 5.4.
5.5 Item Processing Services.
(i) M&I shall perform for Customer those certain Item
Processing Services described in Schedule 5.5 for
which Customer agrees to pay M&I in accordance with
the fees specified in the Fee Schedule.
(ii) M&I and Customer agree to perform their respective
responsibilities associated with Item Processing
Services in accordance with the procedures
established by M&I as modified from time to time. A
copy of M&I's procedure has been or will be provided
to Customer.
(iii) M&I agrees that solely with respect to the item
Processing Services provided under Schedule 5.5,
such Item Processing Services shall be performed in
a commercially reasonable manner and no other or
higher degree of care. M&I assumes no other
obligation as to performance or quality of the Item
Processing Services provided. M&I shall not be
responsible for any loss or damage to Customer
arising as a result of any action or inaction on the
part of M&I including, but not limited to, indirect,
incidental, or consequential damages, lost profits,
or business operation loss. In the event of errors
resulting from M&I's provision of the Item Processing
Services,
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M&I's sole obligation and Customer's sole remedy,
shall be for M&I to correct such errors, if possible,
and to review its systems and procedures for the
purpose of implementing changes to prevent a future
occurrence of a similar error.
6. RETAIL DELIVERY SYSTEMS AND SERVICES
6.1 Branch Automation Systems. M&I agrees to provide the licenses,
products, interfaces and network management associated with the automation of
Customer's branch offices, in accordance with the Branch Automation Agreement.
7. BANKCARD PROCESSING SERVICES
7.1 EFD Services. The electronic funds delivery services ("EFD
Services") to be provided by M&I shall be subject to the terms and conditions
set forth on attached Schedule 7-1.
8. FEES
8.1 Fee Structure. Schedule 8.1 attached hereto (the "Fee
Schedule") sets forth the costs and charges for the Services and Customer agrees
to pay M&I the fees specified in the Fee Schedule for the Services rendered by
M&I. These costs and charges are included in one or more of the following
categories:
(i) one-time fees associated with the Conversion;
(ii) a minimum monthly fee for certain recurring,
aggregated data processing services based on stated
volumes; actual volumes in excess of stated volumes
shall result in additional charges as further
described in the Fee Schedule;
(iii) an hourly or daily fee for programming, training and
related Services requested by Customer; and
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(iv) fees based on M&I's then current published price list
for New Services not included in the foregoing
categories.
8.2 Conversion. Customer agrees to pay M&I the fees relating to
the Conversion on the terms and conditions set forth on the Fee Schedule. In
addition, Customer agrees to reimburse M&I (i) for all Expenses reasonably
incurred in connection with the Conversion; (ii) for Conversion of accounts or
products not identified in the Conversion Plan as of the Effective Date; and
(iii) for M&I personnel or any independent contractors who perform services
which are identified as the responsibility of the Customer in the Conversion
Plan.
8.3 Pricing and Operational Assumptions. The Fee Schedule sets
forth the operational and pricing assumptions made by M&I following completion
of its preliminary due diligence of Customer's requirements and its evaluation
of information provided by Customer. If the parties determine that one or more
of the pricing or operational assumptions listed in the Fee Schedule is
inaccurate or incomplete in any material respect, the parties will negotiate in
good faith regarding an equitable adjustment to any materially and adversely
impacted provisions of this Agreement.
8.4 EFD Services. In addition to the charges specified on the Fee
Schedule, Customer shall be responsible for all interchange and network provider
fees and all dues, fees and assessments established by and owed to Visa and/or
MasterCard for the processing of Customer's transactions, and for all costs and
fees associated with changes to ATM (as defined in Schedule 7.1) protocol caused
by Customer's use of the EFD Services.
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8.5 Training and Education.
A. M&I shall provide training in accordance with the training
schedule developed pursuant to the Conversion Plan. The sessions shall be held
at a location mutually agreed upon by the parties. Customer shall be responsible
for all Expenses incurred by the participants and M&I's trainers in connection
with such education and training. If Customer requests that training be
conducted at a non-M&I facility, Customer shall be responsible for additional
fees as quoted by M&I. The training fees specified as part of Conversion fees do
not include training for data warehouse, branch automation systems, Bankcard
Services and EFD Services.
B. M&I will provide to Customer, at no charge, one set of each
of the User Manuals. When the User Manuals are updated, M&I will provide the
updates to Customer at no additional charge. Additional sets of the User Manuals
may be purchased by Customer at M&I's then current published price list.
8.6 Excluded Costs. The fees set forth in the Fee Schedule do not
include shipping and courier costs, telecommunication charges, logical unit
("LU") charges, Expenses, Third Party pass-through charges, workshop fees,
training fees, late fees or charges and Taxes.
8.7 Disputed Amounts. If Customer disputes any charge or amount on any
invoice and such dispute cannot be resolved promptly through good faith
discussions between the parties, Customer shall pay the amounts due under this
Agreement less the disputed amount, and the parties shall diligently proceed to
resolve such disputed amount. An amount will be considered disputed in good
faith if (i) Customer delivers a written statement to M&I on or before the due
date of the invoice, describing in detail the basis of the dispute and the
amount being withheld by Customer, (ii) such written statement represents that
the amount in dispute has been determined after due investigation of the facts
and that such disputed amount has been determined in good faith, and (iii) all
other amounts due from Customer that are not in dispute have been paid in
accordance with the terms of this Agreement.
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8.8 Terms of Payment. All "one-time" fees shall be paid to M&I as
set forth in the Fee Schedule. Customer shall pay the Monthly Base Fee in
advance on the first day of the calendar month in which the Services are to be
performed. To effect payment, Customer hereby authorizes M&I to initiate debit
entries from and, if necessary, initiate credit entries and adjustments to
Customer's account at the depository institution designated in the ACH
Authorization Agreement attached hereto as Exhibit A, which shall be executed by
Customer contemporaneously with the execution of this Agreement. All other
amounts due hereunder shall be paid within thirty (30) days of invoice, unless
otherwise provided in the Fee Schedule. Undisputed charges not paid by the due
date shall be subject to annual interest at the rate of 12% or the highest rate
permitted by law, whichever is lower. Customer shall also pay any collection
fees and Damages incurred by M&I in collecting payment of the charges and any
other amounts for which Customer is liable under the terms and conditions of
this Agreement.
8.9 Modification of Terms and Pricing. All charges for Services shall
be subject to the annual adjustments set forth in the Fee Schedule.
9. PERFORMANCE WARRANTY/EXCLUSIVE REMEDY/DISCLAIMER OF ALL
OTHER WARRANTIES
9.1 Performance Warranty. M&I warrants that it will provide the ADP
Services covered by this Agreement in accordance with the Performance
Standards and that it will provide reports to the Customer that are in
substantial conformity with the User Manuals, as amended from time to time. THIS
PERFORMANCE WARRANTY IS SUBJECT TO THE WARRANTY EXCLUSIONS SET FORTH BELOW IN
ARTICLE 9.2 AND THE REMEDY LIMITATIONS SET FORTH BELOW IN ARTICLE 9.3.
9.2 Performance Warranty Exclusions. Except as may be expressly agreed
in writing by M&I, M&I's Performance Warranty does not apply to:
(a) defects, problems, or failures caused by the Customer's
nonperformance of obligations essential to M&I's performance of its
obligations; and/or
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(b) defects, problems, or failures caused by an event of force
majeure.
9.3 Notice of and Correction of Defects. Customer shall notify M&I in
writing of any alleged breach of this Performance Warranty. Upon receipt of such
notice, M&I shall have ninety (90) days to correct the alleged breach. During
this time period, M&I shall make every reasonable effort, at its own expense, to
correct any material defect. Customer shall be responsible for making whatever
appropriate adjustments may be necessary to mitigate adverse effects on Customer
until M&I corrects the defect. if requested by Customer, M&I will, at M&I's
expense, assist Customer in making such corrections through the most
cost-effective means, whether manual, by system reruns or program modifications.
9.4 Backup Remedy. If after ninety (90) days M&I remains in breach of
the Performance Warranty, the Customer may terminate this Agreement without
penalty or payment of any Termination Fee upon giving M&I at least thirty (30)
days' prior written notice, with such notice to run after the expiration of the
ninety (90) day cure period. THE BACKUP REMEDY SET FORTH IN THIS SECTION 9.4 IS
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE PERFORMANCE WARRANTY,
TO THE EXCLUSION OF ALL OTHER REMEDIES, IN CONTRACT, TORT, OR OTHERWISE.
9.5 DISCLAIMER OF ALL OTHER WARRANTIES. THIS PERFORMANCE WARRANTY,
AND THE REPRESENTATIONS IN SECTION 16.1, ARE IN LIEU OF, AND M&I DISCLAIMS
ANY AND ALL OTHER WARRANTIES CONDITIONS, OR REPRESENTATIONS (EXPRESS OR
IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS
CONTRACT, INCLUDING, WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT M&I
KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF
ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE
IN THE TRADE, OR BY COURSE OF DEALING. IN ADDITION, M&I DISCLAIMS ANY WARRANTY
OR REPRESENTATION TO ANY PERSON OTHER THAN THE CUSTOMER WITH RESPECT TO THE
SERVICES PROVIDED UNDER THIS CONTRACT.
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10. MODIFICATION OR PARTIAL TERMINATION
10.1 Modifications to Services. M&I may modify, amend, enhance,
update, or provide an appropriate replacement for the software used to provide
the Services, or any element of its systems or processes at any time to: (i)
improve the Services or (ii) facilitate the continued economic provision of the
Services to Customer or M&I, provided that neither the functionality of the
Services nor any applicable Performance Standards are materially adversely
affected.
10.2 Partial Termination by M&I. M&I may, at any time, withdraw any of
the Services (other than the Core Services) upon providing ninety (90) days'
prior written notice to Customer. M&I may also terminate any of the Services
immediately upon any final regulatory, legislative, or judicial determination
that providing such Services is inconsistent with applicable law or regulation.
If M&I terminates any Service, M&I agrees to assist Customer, without additional
charge, in identifying an alternate provider of such terminated Service.
10.3 Partial Termination by Customer.
A. Customer agrees that, during the Term, Customer shall
obtain exclusively from M&I all of its requirements covered by the Initial
Services. If Customer breaches the foregoing covenant, Customer shall pay M&I a
Termination Fee for the discontinued Service, as liquidated damages and not as a
penalty.
B. Unless otherwise agreed to by the parties in writing,
Customer may terminate any New Service upon one hundred eighty (180) days prior
written notice to M&I. Termination of New Services shall not be subject to any
Termination Fee, unless the entire Agreement is terminated in a manner which
would entitle M&I to receive a Termination Fee.
10.4 Ownership and Proprietary Rights. M&I reserves the right to
determine the hardware, software and tools to be used by M&I in fulfilling its
duties under this Agreement. M&I and Customer intend and agree that M&I shall
retain title and all other ownership and proprietary rights in and to the M&I
Proprietary Materials and information. Such ownership and proprietary rights
shall include any and all rights in and to patents, trademarks, copyrights, and
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trade secret rights. M&I and Customer agree that M&I Proprietary Materials and
Information are not "work made for hire" within the meaning of U.S. Copyright
Act 17 U.S.C. Section 101.
10.5 Millennium Modifications. The M&I Software has been modified to
be Millennium Ready. Any additional modification to the M&I Software to make it
Millennium Ready shall be made by M&I at no additional charge to Customer,
provided, however, that any testing requirements imposed on Customer by any
Federal Regulator shall be performed by M&I at Customer's sole cost and expense
at M&I's then-current standard rates. M&I shall provide to Customer, at no
charge, the results of proxy testing conducted as of the Effective Date on
non-custom M&I Software used to provide the Initial Services.
11. TERMINATION
11.1 Early Termination. The terms and conditions set forth in attached
Schedule 11.1 shall govern the early termination of this Agreement (or any
Service which is part of the Initial Services).
11.2 For Cause. If either party fails to perform any of its material
obligations under this Agreement and does not cure such failure within thirty
(30) days after being given notice specifying the nature of the failure, then
the non-defaulting party may, by giving notice to the other party, terminate
this Agreement as of the date specified in such notice of termination, or such
later date agreed to by the parties, without prejudice to the non-defaulting
party's right to collect Damages (if the non-defaulting party is the Customer)
or the Termination Fee (if the non-defaulting party is M&I).
11.3 For, Insolvency. In addition to the termination rights set forth
in Sections 11.1 and 11.2, subject to the provisions of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Code, if either party becomes or is declared insolvent or bankrupt, is the
subject to any proceedings relating to its liquidation, insolvency or for the
appointment of a receiver or similar officer for it, makes an assignment for the
benefit of all or substantially all of its creditors, or enters into an
agreement for the composition, extension, or readjustment of
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all or substantially all of its obligations, or is subject to regulatory
sanction by any Federal Regulator, then the other party may, by giving written
notice to such party, may terminate this Agreement as of a date specified in
such notice of termination; provided that the foregoing shall not apply with
respect to any involuntary petition in bankruptcy filed against a party unless
such petition is not dismissed within sixty (60) days of such filing.
11.4 For Force Majeure. In the event that M&I fails to provide the
Services in accordance with this Agreement for a period of forty-five (45) days
due to an event of force majeure (as described in Section 22.16 hereof),
Customer may terminate this Agreement upon written notice to M&I delivered
within thirty (30) days thereafter, without payment of any Termination Fee.
12. SERVICES FOLLOWING TERMINATION
12.1 Termination Assistance. Following the expiration or early
termination of this Agreement, M&I shall provide Customer, at Customer's
expense, all necessary assistance to facilitate the orderly transition of
Services to Customer or its designee ("Termination Assistance"). As part of the
Termination Assistance, M&I shall assist Customer to develop a plan for the
transition of all Services then being performed by M&I under this Agreement,
from M&I to Customer or its designee, on a reasonable schedule developed jointly
by M&I and Customer. Prior to providing any Termination Assistance, M&I shall
deliver to Customer a good faith estimate of all such Expenses and charges
including charges for custom programming services. Customer understands and
agrees that all Expenses and charges for Termination Assistance shall be
computed in accordance with M&I's then-current standard published prices for
such products, materials and services. Nothing contained herein shall obligate
Customer to receive Termination Assistance from M&I. No termination of this
Agreement pursuant to Section 11 above or otherwise shall affect the provisions
of this Section 12.1.
12.2 Continuation of Services. Unless M&I terminates this Agreement
pursuant to Section 11.2 above, upon at least ninety (90) days' prior written
request by Customer, M&I shall continue to provide Customer all Services and
the
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Effective Date of Termination shall be extended for a maximum period of twelve
(12) months. If Customer elects to receive the Services for such period, M&I's
then-current standard pricing shall continue to apply to the provision and
receipt of such Services.
13. LIMITATION OF LIABILITY/MAXIMUM DAMAGES ALLOWED
13.1 Equitable Relief. Either party may seek equitable remedies,
including injunctive relief, for a breach of the other party's obligations under
Section 17 of this Agreement, prior to commencing the dispute resolution
procedures set forth in Section 15.1 below.
13.2 Exclusion of Incidental and Consequential Damages. Independent
of, severable from, and to be enforced independently of any other provision of
this Agreement, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY
PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) IN CONTRACT, TORT,
OR OTHERWISE, FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY
DAMAGES OF ANY KIND--including lost profits, loss of business, or other economic
damage, and further including injury to property, but specifically excluding the
damages set forth in Article 13.3, below--AS A RESULT OF BREACH OF ANY WARRANTY
OR OTHER TERM OF THIS AGREEMENT, INCLUDING ANY FAILURE OF PERFORMANCE,
REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD
OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
13.3 Maximum Damages Allowed. Notwithstanding any other provision of
this Agreement, and for any reason, including breach of any duty imposed by this
contract, or independent of this contract, and regardless of any claim in
contract, tort, or otherwise, M&I's total, aggregate liability under this
Agreement shall in no circumstance exceed payments made to M&I by Customer under
this Agreement during the three (3) months prior to the act or event giving rise
to such claim.
13.4 Statute of Limitations. No lawsuit or other action may be brought
by either party hereto, or on any claim or controversy based upon or arising in
any way out of this Agreement, after one (1) year from the date on which the
cause of action arose regardless of the nature of the
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claim or form of action, whether in contract, tort, or otherwise; provided,
however, the foregoing limitation shall not apply to the collection of any
amounts due under this Agreement.
13.5 Economic Loss Waiver. In addition to and not in limitation of any
other provision of this Article 13, Customer hereby knowingly, voluntarily, and
intentionally waives any right to recover from M&I any economic losses or
damages in any action brought under tort theories, including, misrepresentation,
negligence and/or strict liability, relating to the quality or performance of
any products or services provided by M&I. For purposes of this waiver, economic
losses and damages include monetary losses or damages to Customer caused by a
defective product or service except personal injury or damage to other property.
Even if remedies provided to Customer under this Agreement shall be deemed to
have failed of their essential purpose, M&I shall have no liability to Customer
under tort theories for economic losses or damages.
13.6 Liquidated Damages. Customer acknowledges that M&I shall suffer a
material adverse impact on its business if this Agreement is terminated prior
to expiration of the Term, and that the resulting damages may not be
susceptible of precise determination. Customer acknowledges that the Termination
Fee is a reasonable approximation of such damages and shall be deemed to be
liquidated damages and not a penalty.
13.7 Essential Elements. Customer and M&I acknowledge and agree that
the limitations contained in this Article 13 are essential to this Agreement,
and that M&I has expressly relied upon the inclusion of each and every provision
of this Article 13 as a condition to executing this Agreement.
14. INSURANCE AND INDEMNITY
14.1 Insurance. M&I shall maintain for its own protection fidelity
bond coverage for the Operations Center personnel; insurance coverage for loss
from fire, disaster or the causes contributing to interruption of normal
services, including replacement of data processing equipment; reconstruction of
data file media and related processing costs; additional expenses incurred to
continue
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operations; and business interruption to reimburse M&I for losses resulting from
suspension of the Operation Center's activities due to physical loss of
equipment.
14.2 Indemnity.
A. By Customer. Customer shall indemnify M&I from, defend M&I
against, and pay any final judgments awarded against M&I, resulting from: (i)
any breach of this Agreement by Customer (ii) Customer's violation of Federal,
state, or other laws or regulations; (iii) work-related injury or death caused
by Customer or its employees or agents; (iv) tangible personal or real property
damage or financial or monetary loss incurred by M&I resulting from Customer's
acts or omissions; and (v) the data, information and/or instructions furnished
by Customer and any inaccuracy or inadequacy therein.
B. By M&I. M&I shall indemnify Customer from, defend Customer
against, and pay any final judgment awarded against Customer, resulting from:
(i) any claim by a Third Party that the Services or the M&I Software infringe
upon any patent, copyright or trademark of a Third Party under the laws of the
United States; (ii) any breach of this Agreement by M&I; (iii) M&I's violation
of Federal, state, or other laws or regulations; (iv) work-related injury or
death caused by M&I, its employees, or agents; and (v) tangible personal or real
property damage resulting from M&I's acts or omissions.
14.3 Indemnification Procedures. If any Third Party makes a claim
covered by this Section against an indemnitee with respect to which such
indemnitee intends to seek indemnification under this Section, such indemnitee
shall give notice of such claim to the indemnifying party, including a brief
description of the amount and basis therefor, if known. Upon giving such notice,
the indemnifying party shall be obligated to defend such indemnitee against such
claim, and shall be entitled to assume control of the defense of the claim with
counsel chosen by the indemnifying party, reasonably satisfactory to the
indemnitee. Indemnitee shall cooperate fully with, and assist, the indemnifying
party in its defense against such claim in all reasonable respects. The
indemnifying party shall keep the indemnitee fully apprised at all times as to
the status of the defense. Notwithstanding the foregoing,
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the indemnitee shall have the right to employ its own separate counsel in any
such action, but the fees and expenses of such counsel shall be at the expense
of such indemnitee. Neither the indemnifying party nor any indemnitee shall be
liable for any settlement of action or claim effected without its consent.
Notwithstanding the foregoing, the indemnitee shall retain, assume, or reassume
sole control over all expenses relating to every aspect of the defense that it
believes is not the subject of the indemnification provided for in this section.
Until both (a) the indemnitee receives notice from indemnifying party that it
will defend, and (b) the indemnifying party assumes such defense, the indemnitee
may, at any time after ten (10) days from the date notice of claim is given to
the indemnifying party by the indemnitee, resist or otherwise defend the claim
or, after consultation with and consent of the indemnifying party, settle or
otherwise compromise or pay the claim. The indemnifying party shall pay all
costs of indemnity arising out of or relating to that defense and any such
settlement, compromise, or payment. The indemnitee shall keep the indemnifying
party fully apprised at all times as to the status of the defense. Following
indemnification as provided in this Section, the indemnifying party shall be
subrogated to all rights of the indemnitee with respect to the matters for which
indemnification has been made.
15. DISPUTE RESOLUTION
15.1 Representatives of Parties. All disputes arising under or in
connection with this Agreement shall initially be referred to the Account
Representatives. If the Account Representatives are unable to resolve the
dispute within five (5) business days after referral of the matter to them, the
managers of the Account Representatives shall attempt to resolve the dispute.
If, after five (5) days they are unable to resolve the dispute, senior
executives of the parties shall attempt to resolve the dispute. If, after five
(5) days they are unable to resolve the dispute, the parties shall submit the
dispute to the chief executive officers of the parties for resolution. Neither
party shall commence legal proceedings with regard to a dispute until completion
of the dispute resolution procedures set forth in this Section 15.1, except to
the extent necessary to preserve its rights or maintain a superior position.
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15.2 Continuity of Performance. During the pendency of the dispute
resolution proceedings described in this Article 15, M&I shall continue to
provide the Services so long as Customer shall continue to pay all undisputed
amounts to M&I in a timely manner.
16. REPRESENTATIONS AND WARRANTIES
16.1 By M&I. M&I represents and warrants that:
A. Rights. M&I has the right to provide the Services hereunder,
using all computer software required for that purpose.
B. Organization and Approvals. M&I is a corporation validly
existing and in active status under the laws of the State of Wisconsin. It has
all the requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement. The execution, delivery and performance of
this Agreement has been duly authorized by M&I and this Agreement is enforceable
in accordance with its terms against M&I. No approval, authorization or consent
of any governmental or regulatory authorities is required to be obtained or made
by M&I in order for M&I to enter into and perform its obligations under this
Agreement.
16.2 By Customer. Customer represents and warrants that:
A. Organization. It is a corporation validly existing and in good
standing under the laws of the state of its incorporation.
B. Authority. It has all the requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement.
The execution, delivery and performance of this Agreement has been duly
authorized by Customer and this Agreement is enforceable in accordance with its
terms against Customer.
C. Approvals. No approval, authorization or consent of any
governmental or regulatory authorities required to be obtained or made by
Customer in order for
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Customer to enter into and perform its obligations under this Agreement.
17. CONFIDENTIALITY AND OWNERSHIP
17.1 Customer Data. Customer shall remain the sole and exclusive owner
of all Customer Data and other Confidential Information (as hereinafter
defined), regardless of whether such data is maintained on magnetic tape,
magnetic disk, or any other storage or processing device. All such Customer Data
and other Confidential Information shall, however, be subject to regulation and
examination by the appropriate auditors and regulatory agencies to the same
extent as if such information were on Customer's premises. "Customer Data" means
any and all data and information of any kind or nature submitted to M&I by
Customer, or received by M&I on behalf of Customer, in connection with the
Services.
17.2 M&I Systems. Customer acknowledges that it has no rights in any
software, systems, documentation, guidelines, procedures and similar related
materials or any modifications thereof provided by M&I, except with respect to
Customer's use of the same during the Term to process its data.
17.3 Confidential Information. "Confidential Information" of a party
shall mean all confidential or proprietary information and documentation of such
party, whether or not marked as such, including without limitation with respect
to Customer, all Customer Data. Confidential Information shall not include: (i)
information which is or becomes publicly available (other than by the person or
entity having the obligation of confidentiality) without breach of this
Agreement; (ii) information independently developed by the receiving party;
(iii) information received from a third party not under a confidentiality
obligation to the disclosing party; or (iv) information already in the
possession of the receiving party without obligation of confidence at the time
first disclosed by the disclosing party. The parties acknowledge and agree that
the substance of the negotiations of this Agreement, and the terms of this
Agreement are Considered Confidential Information subject to the restrictions
contained herein. Neither party shall use, copy, sell, transfer, publish,
disclose, display, or otherwise make any of the other party's Confidential
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Information available to any Third Party without the prior written consent of
the other.
17.4 Obligations of the Parties. M&I and Customer shall hold the
Confidential Information of the other party in confidence and shall not disclose
or use such Confidential Information other than for the purposes contemplated by
this Agreement, and shall instruct their employees, agents, and contractors to
use the same care and discretion with respect to the Confidential Information of
the other party or of any Third Party utilized hereunder that M&I and Customer
each require with respect to their own most confidential information, but in no
event less than a reasonable standard of care, including but not limited to, the
utilization of security devices or procedures designed to prevent unauthorized
access to such materials. Each party shall instruct its employees, agents, and
contractors of its confidentiality obligations hereunder and not to attempt to
circumvent any such security procedures and devices. Each party's obligation
under the preceding sentence may be satisfied by the use of its standard form of
confidentiality agreement, if the same reasonably accomplishes the purposes here
intended. All such Confidential Information shall be distributed only to persons
having a need to know such information to perform their duties in conjunction
with this Agreement.
17.5 Security. M&I shall be responsible for, and shall establish and
maintain safeguards against, any disaster, loss or alteration of the Customer
Data in the possession of M&I. Such safeguards shall be no less rigorous than
that M&I uses to protect its own data of a similar nature.
18. MANAGEMENT OF PROJECT
18.1 Account Representatives. Each party shall cause an individual to
be assigned ("Account Representative") to devote time and effort to management
of the Services under this Agreement following the Conversion. Neither party
shall reassign or replace its Account Representative during the first six (6)
months of his or her assignment without the consent of the other party, except
if such individual voluntarily resigns, is dismissed for cause, or is unable to
work due to his or her death or disability.
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18.2 Reporting and Meetings. Within sixty (60) days after the
Effective Date, the parties shall mutually agree upon (a) an appropriate set of
periodic reports to be issued by M&I to Customer during the Conversion Period
and during the remainder of the Term; and (b) an appropriate set of periodic
meetings to be held between the Account Representatives during the Conversion
Period and the remainder of the Term. Meetings shall be held to review
performance, changes, resource utilization and such other matter as appropriate.
18.3 Development Projects and Technical Support. Upon Customer's
written request, M&I will develop and provide to Customer a good faith estimate
of any additional charges which Customer may incur in connection with the
operation of any new software, major modification or enhancements developed by
M&I or the acquisition of Third Party software. Customer agrees that M&I will
have the opportunity to bid on and be considered for all software development,
maintenance and other technology projects related to the Services that Customer
wishes to implement. Nothing contained herein shall obligate M&I to develop
enhancements requested by Customer.
19. REGULATORY COMPLIANCE
A. Customer shall be solely responsible for monitoring and
interpreting (and for complying with, to the extent such compliance requires no
action by M&I) the federal and state laws, rules and regulations pertaining to
Customer's business (the "Legal Requirements"). Based on Customer's Proper
Instructions, M&I shall select the processing parameter settings, features and
options (collectively, the "Parameters") within M&I's system that will apply to
Customer. Customer shall be responsible for determining that such selections are
consistent with the Legal Requirements and with the terms and conditions of any
agreements between Customer and its clients. In making such determinations,
Customer may rely upon the written descriptions of such Parameters contained in
the User Manuals. M&I shall perform system processing in accordance with the
Parameters.
B. Subject to the foregoing, M&I shall perform an ongoing review
of federal laws, rules and regulations. M&I
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shall maintain the features and functions set forth in the User Manuals for each
of the Services in accordance with all changes in federal laws, rules and
regulations applicable to such features and functions, in a non-custom
environment. For any new federal laws, rules and regulations, M&I will perform a
business review, with input from M&I's customers and user groups. If M&I elects
to support a new federal law, rule or regulation through changes to the M&I
Software, M&I shall develop and implement modifications to the Services to
enable Customer to comply with such new federal laws, rules and regulations. In
all other circumstances relating to regulatory compliance of the Services,
including state laws, rules and regulations, the provisions of Section 5.2 above
(New Services) shall apply.
C. In any event, M&I shall work with Customer in developing and
implementing a suitable procedure or direction to enable Customer to comply with
federal and state laws, rules and regulations applicable to the Services being
provided by M&I to Customer, including in those instances when M&I has elected
to, but it is not commercially practicable to, modify the M&I Software prior to
the regulatory deadline for compliance.
20. DISASTER RECOVERY
20.1 Services Continuity Plan. M&I shall maintain throughout the Term
of the Agreement a Services Continuity Plan (the "Plan") in compliance with
applicable regulatory requirements. "Disaster" shall have the meaning set forth
in the Plan. Review and acceptance of the Plan as may be required by any
applicable regulatory agency shall be the responsibility of Customer. M&I shall
cooperate with Customer in conducting such reviews as such regulatory agency may
from time to time reasonably request. A detailed executive summary of the Plan
has been provided to Customer. Updates to the Plan shall be provided to Customer
without charge.
20.2 Relocation. If appropriate, M&I shall relocate all affected
Services to an alternate disaster recovery site as expeditiously as possible
after declaration of a Disaster, and shall coordinate with Customer all
requisite telecommunications modifications necessary to achieve full
connectivity to the disaster recovery site, in material compliance with all
regulatory requirements.
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20.3 Resumption of Services. The Plan provides that, in the event of a
Disaster, M&I will be able to resume the Services in accordance therewith within
the time periods specified in the Plan. In the event M&I is unable to resume the
Services to Customer within the time periods specified in the Plan, Customer
shall have the right to terminate this Agreement without payment of the
Termination Fee upon written notice to M&I delivered within forty-five (45) days
after declaration of such Disaster.
20.4 Annual Test. M&I shall test its Plan by conducting one (1) test
annually and shall provide Customer with a description of the test results in
accordance with applicable laws and regulations.
21. GENERAL TERMS AND CONDITIONS
21.1 Transmission of Data. The responsibility and expense for
transportation and transmission of, and the risk of loss for, data and media
transmitted between M&I and Customer shall be borne by Customer. Data lost by
M&I following processing, including loss of data transmission, shall either be
restored by M&I from its backup media or shall be reprocessed from Customer's
backup media at no additional charge to Customer.
21.2 Equipment and Network. Customer shall obtain and maintain at its
own expense its own data processing and communications equipment as may be
necessary or appropriate to facilitate the proper use and receipt of the
Services. Customer shall pay all installation, monthly, and other charges
relating to the installation and use of communications lines between Customer's
datacenter and the Operations Center, as set forth in Schedule 21.2 ("Network
Schedule"). M&I maintains and will continue to maintain a network control center
with diagnostic capability to monitor reliability and availability of the
communication lines described in the Network Schedule, but M&I shall not be
responsible for the continued availability or reliability of such communications
lines.
21.3 Reliance on Data. M&I will perform the Services described in this
Agreement on the basis of information furnished by Customer. M&I shall be
entitled to rely upon
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any such data, information, or instructions as provided by Customer. If any
error results from incorrect input supplied by Customer, Customer shall be
responsible for discovering and reporting such error and supplying the data
necessary to correct such error to M&I for processing at the earliest possible
time.
21.4 Data Backup. Customer shall maintain adequate records for at least
ten (10) business days including (i) microfilm images of items being transported
to M&I or (ii) backup on magnetic tape or other electronic media where
transactions are being transmitted to M&I, from which reconstruction of lost or
damaged items or data can be made. Customer assumes all responsibility and
liability for any loss or damage resulting from failure to maintain such
records.
21.5 Balancing and Controls. Customer shall (a) on a daily basis,
review all input and output, controls, reports, and documentation, to ensure the
integrity of data processed by M&I; and (b) on a daily basis, check exception
reports to verify that all file maintenance entries and nondollar transactions
were correctly entered. Customer shall be responsible for initiating timely
remedial action to correct any improperly processed data which these reviews
disclose.
21.6 Use of Services. Customer assumes exclusive responsibility for the
consequences of any Proper Instructions Customer may give M&I, for Customer's
failure to properly access the Services in the manner prescribed by M&I, and for
Customer's failure to supply accurate input information. Customer agrees that,
except as otherwise permitted in this Agreement or in writing by M&I, Customer
will use the Services only for its own internal business purposes to service its
banking customers and clients and will not sell or otherwise provide, directly
or indirectly, any of the Services or any portion thereof to any Third Party.
21.7 Regulatory Assurances. M&I and Customer acknowledge and agree that
the performance of these Services will be subject to regulation and examination
by Customer's regulatory agencies to the same extent as if such Services were
being performed by Customer. Upon request, M&I agrees to provide any appropriate
assurances to such agency and agrees to subject itself to any required
examination or
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regulation. Customer agrees to reimburse M&I for reasonable costs actually
incurred due to any such examination or regulation that is performed primarily
for the purpose of examining Services used by Customer.
A. Notice Requirements. Customer shall be responsible
for complying with all regulatory notice provisions to any applicable
governmental agency, which shall include providing timely and adequate notice to
the Chief Examiner of the Federal Home Loan Bank Board, the Office of Thrift
Supervision, the Office of the Comptroller of the Currency, The Federal Deposit
Insurance Corporation, the Federal Reserve Board, or their successors, as
applicable (collectively, the "Federal Regulators"), as of the Effective Date of
this Agreement, identifying those records to which this Agreement shall apply
and the location at which such Services are to be performed.
B. Examination of Records. The parties agree that the
records maintained and produced under this Agreement shall, at all times, be
available at the Operations Center for examination and audit by governmental
agencies having jurisdiction over the Customer's business, including any Federal
Regulator. The Director of Examinations of any Federal Regulator or his or her
designated representative shall have the right to ask for and to receive
directly from M&I any reports, summaries, or information contained in or derived
from data in the possession of M&I related to the Customer. M&I shall notify
Customer as soon as reasonably possible of any formal request by any authorized
governmental agency to examine Customer's records maintained by M&I, if M&I is
permitted to make such a disclosure to Customer under applicable law or
regulations. Customer agrees that M&I is authorized to provide all such
described records when formally required to do so by a Federal Regulator.
C. Audits. M&I shall cause a Third Party review of the
Operations Center and related internal controls, to be conducted annually by its
independent auditors. M&I shall provide to Customer, upon written request, one
copy of the audit report resulting from such review. Remote datacenters used by
M&I in providing some of the Services shall be reviewed by M&I's internal
auditors in accordance with procedures and on a schedule satisfactory to the
Federal Regulator responsible for supervision of M&I.
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21.8 IRS Filing. Customer represents it has complied with all laws,
regulations, procedures, and requirements in attempting to secure correct tax
identification numbers (TINS) for Customer's payees and customers and agrees to
attest to this compliance by an affidavit provided annually. Customer authorizes
M&I to act as Customer's agent and sign on Customer's behalf the Affidavit
required by the Internal Revenue Service on Form 4804, or any successor form.
Exhibit B (Attorney-in-Fact Appointment) and Exhibit C (Affidavit) shall be
executed by Customer contemporaneously with the execution of this Agreement.
Customer acknowledges that M&I's execution of the Form 4804 Affidavit on
Customer's behalf does not relieve Customer of responsibility to provide
accurate TINs or liability for any penalties which may be assessed for failure
to comply with TIN requirements.
21.9 Affiliates. Customer agrees that it is responsible for assuring
compliance with this Agreement by those Affiliates receiving Services under this
Agreement. Customer agrees to be responsible for the submission of its
Affiliates, data to M&I for processing and for the transmission to Customer's
Affiliates of such data processed by and received from M&I. Customer agrees to
pay any and all fees owed under this Agreement for Services rendered to its
Affiliates.
21.10 Future Acquisition. Customer acknowledges that M&I has
established the Fee Schedule and enters into this Agreement on the basis of
M&I's understanding of the Customer's current need for Services and Customer's
anticipated future need for Services as a result of internally generated
expansion of its customer base. If the Customer expands its operations by
acquiring Control of additional financial institutions or the Customer
experiences a Change in Control (as hereinafter defined), the following
provisions shall apply:
A. Acquisition of Additional Entities. If Customer
acquires Control after the date hereof of one or more bank holding companies,
banks, savings and loan associations or other financial institutions that are
not currently Affiliates, M&I agrees to provide Services for such new Affiliates
and such Affiliates shall automatically be included in the definition of
"Customer"; provided that
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(a) the Conversion of each new Affiliate must be scheduled at a mutually
agreeable time (taking into account, among other things, the availability of M&I
Conversion resources) and must be completed before M&I has any obligation to
provide Services to such new Affiliate; (b) the Customer will be liable for any
and all Expenses in connection with the Conversion of such new Affiliate; and
(c) Customer shall pay Conversion Fees in an amount to be mutually agreed upon
with respect to each new Affiliate.
B. Change in Control of Customer. If a Change in Control
occurs with respect to Customer, M&I agrees to continue to provide Services
under this Agreement; provided that (a) M&I obligation to provide Services shall
be limited to the entities comprising the Customer prior to such Change in
Control and (b) M&I's obligation to provide Services shall be limited in any and
all circumstances to the number of accounts and items processed in the 3-month
period prior to such Change in Control occurring plus 25%.
22. MISCELLANEOUS PROVISIONS
22.1 Governing Law. The validity, construction and interpretation of
this Agreement and the rights and duties of the parties hereto shall be governed
by the internal laws of the State of Wisconsin, excluding its principles of
conflict of laws.
22.2 Venue and Jurisdiction. In the event of litigation to enforce the
terms of this Agreement, the parties consent to venue in an exclusive
jurisdiction of the courts of Milwaukee County, Wisconsin and the Federal
District Court for the Eastern District of Wisconsin. The parties further
consent to the jurisdiction of any federal or state court located within a
district which encompasses assets of a party against which a judgment has been
rendered, either through arbitration or litigation, for the enforcement of such
judgment or award against such party or the assets of such party.
22.3 Entire Agreement; Amendments. This Agreement, together with the
exhibits and schedules hereto, constitutes the entire agreement between M&I and
the Customer with respect to the subject matter hereof. There are no
restrictions, promises, warranties, covenants or
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undertakings other than those expressly set forth herein and therein. This
Agreement supersedes all prior negotiations, agreements, and undertakings
between the parties with respect to such matter. This Agreement, including the
exhibits and schedules hereto, may be amended only by an instrument in writing
executed by the parties or their permitted assignees.
22.4 Assignment. This Agreement may not be assigned by either party, by
operation of law or otherwise, without the prior written consent of the other
party, which consent shall not be unreasonably withheld, provided that (a) M&I's
consent need not be obtained in connection with the assignment of this Agreement
pursuant to a merger in which Customer is a party and as a result of which the
surviving Entity becomes an Affiliate of another bank holding company, bank,
savings and loan association or other financial institution, so long as the
provisions of Section 21.10 are complied with; and (b) M&I may freely assign
this Agreement (i) in connection with a merger, corporate reorganization or sale
of all or substantially all of its assets, stock or securities, or (ii) to any
Entity which is a successor to the assets or the business of the M&I Data
Services division of M&I.
22.5 Relationship of Parties. The performance by M&I of its duties and
obligations under this Agreement shall be that of an independent contractor and
nothing contained in this Agreement shall create or imply an agency's
relationship between Customer and M&I, nor shall this Agreement be deemed to
constitute a joint venture or partnership between Customer and M&I.
22.6 Notices. Except as otherwise specified in the Agreement, all
notices, requests, approvals, consents and other communications required or
permitted under this Agreement shall be in writing and shall be personally
delivered or sent by (i) first class U.S. mail, registered or certified, return
receipt requested, postage pre-paid; or (ii) U.S. express mail, or other,
similar overnight courier service to the address specified below. Notices shall
be deemed given on the day actually received by the party to whom the notice is
addressed.
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In the case of Customer: First National Bank
of Lehigh Access
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
President & CEO
For Billing Purposes: --------------------------
--------------------------
--------------------------
--------------------------
In the case of M&I: M&I Data Services
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attn:
-------------------
Senior Vice President
Sales & Marketing
-------------------
Vice President and
General Counsel
22.7 Headings. Headings in this Agreement are for reference purposes
only and shall not effect the interpretation or meaning of this Agreement.
22.8 Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original but all of
which together constitute one and the same agreement.
22.9 Waiver. No delay or omission by either party to exercise any right
or power it has under this Agreement shall impair or be construed as a waiver of
such right or power. A waiver by any party of any breach or covenant shall not
be construed to be a waiver of any succeeding breach or any other covenant. All
waivers must be in writing and signed by the party waiving its rights.
22.10 Severability. If any provision of this Agreement is held by court
or arbitrator of competent jurisdiction to be contrary to law, then the
remaining provisions of this Agreement will remain in full force and effect.
Articles 11, 13 and 17 and Sections 22.1, 22.2 and 22.18 shall survive the
expiration or earlier termination of this Agreement for any reason.
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22.11 Attorneys' Fees and Costs. If any legal action is commenced in
connection with the enforcement of this Agreement or any instrument or agreement
required under this Agreement, the prevailing party shall be entitled to costs,
attorneys' fees actually incurred, and necessary disbursements incurred in
connection with such action, as determined by the court.
22.12 Financial Statements. M&I agrees to furnish to the Customer
copies of the then-current annual report for the ▇▇▇▇▇▇▇▇ & Ilsley Corporation,
within 45 days after such document is made publicly available.
22.13 Publicity. Neither party shall use the other parties' name or
trademark or refer to the other party directly or indirectly in any media
release, public announcement or public disclosure relating to this Agreement or
its subject matter, in any promotional or marketing materials, lists or business
presentations, without consent from the other party for each such use or
release. Customer agrees that neither it, its directors, officers, employees or
agents shall disclose this Agreement or any of the terms or provisions of this
Agreement to any other party.
22.14 Solicitation. Neither party shall solicit the employees of the
other party during the Term of this Agreement, for any reason.
22.15 No Third Party Beneficiaries. Each party intends that this
Agreement shall not benefit, or create any right or cause of action in or on
behalf of, any person or entity other than the Customer and M&I.
22.16 Force Majeure. Notwithstanding any provision contained in this
Agreement, neither party shall be liable to the other to the extent fulfillment
or performance if any terms or provisions of this Agreement is delayed or
prevented by revolution or other civil disorders; wars; acts of enemies;
strikes; lack of available resources from persons other than parties to this
Agreement; labor disputes; electrical equipment or availability failure; fires;
floods; acts of God; federal, state or municipal action; statute; ordinance or
regulation; or, without limiting the foregoing, any other causes not within its
control, and which by the exercise of reasonable diligence
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it is unable to prevent, whether of the class of causes hereinbefore enumerated
or not. This clause shall not apply to the payment of any sums due under this
Agreement by either party to the other.
22.17 Construction. M&I and Customer each acknowledge that the
limitations and exclusions contained in this Agreement have been the subject of
active and complete negotiation between the parties and represent the parties'
voluntary agreement based upon the level of risk to Customer and M&I associated
with their respective obligations under this Agreement and the payments to be
made to M&I and the charges to be incurred by M&I pursuant to this Agreement.
The parties agree that the terms and conditions of this Agreement shall not be
construed in favor of or against any party by reason of the extent to which any
party or its professional advisors participated in the preparation of this
document.
22.18 Waiver of Jury Trial. Each of Customer and M&I hereby knowingly,
voluntarily and intentionally waives any and all rights it may have to a trial
by jury in respect of any litigation based on, or arising out of, under, or in
connection with, this Agreement or any course of conduct, course of dealing,
statements (whether verbal or written), or actions of M&I or Customer,
regardless of the nature of the claim or form of action, written contract or
tort, including negligence.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in their names as of the date first above written.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION ("M&I")
ACTING THROUGH ITS DIVISION,
M&I DATA SERVICES
By:
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
Outsourcing Business Group
By:
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Sales & Marketing
LEHIGH ACRES FIRST NATIONAL BANK ("CUSTOMER")
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
By:
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President & CEO
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EXHIBIT A
AUTHORIZATION AGREEMENT
The undersigned ("Customer") hereby authorizes M&I Data Services, a
division of the ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation, ("M&I") to initiate debit entries
and to initiate, if necessary, credit entries and adjustments for any excess
debit entries or debit entries made in error, to Customer's account indicated
below and the depository named below, to debit and/or credit the same such
account.
This authority is to remain in full force and effect for the period coinciding
with the term (and any renewals thereof) of the Outsourcing Agreement made the
______________ day of ________________ 1999, and any addenda thereto (the
"Agreement"), pursuant to the terms and conditions specified in the Agreement.
DEPOSITORY NAME:
---------------------------------------
ADDRESS:
---------------------------------------
CITY/STATE/ZIP:
---------------------------------------
TELEPHONE NUMBER:
---------------------------------------
ROUTING TRANSIT NUMBER:
---------------------------------------
ACCOUNT NUMBER:
---------------------------------------
LEHIGH ACRES FIRST NATIONAL BANK
("customer")
BY:
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: PRESIDENT & CEO
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EXHIBIT B
ATTORNEY-IN-FACT APPOINTMENT
Customer hereby appoints M&I Data Services, a division of the ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇ Corporation ("M&I") as: (1) customer's attorney-in-fact and empowers
M&I to authorize the Internal Revenue Service (IRS) to release information
return documents supplied to the IRS by M&I to states which participate in the
"Combined Federal/State Program"; and (2) Customer's agent to sign on Customer's
behalf the Affidavit required by the Internal Revenue Service on Form 4804, or
any successor form.
LEHIGH ACRES FIRST NATIONAL BANK
("Customer")
By:
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President & CEO
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EXHIBIT C
AFFIDAVIT
STATE OF )
-------------------------
)ss.
COUNTY OF )
-------------------------
I, ▇▇▇▇▇ ▇▇▇▇▇, being first duly sworn, on oath, depose and say:
1. I am an employee of Lehigh Acres First National Bank. I have
personal knowledge of my employer's practices with regard to procuring and
reporting tax identification numbers (TINS) and authority to execute this
Affidavit on my employer's behalf.
2. ▇▇▇▇▇ ▇▇▇▇▇ has complied with all laws, regulations, procedures, and
requirements in attempting to secure correct TINs for its payees. This
compliance has been pursued with due diligence, and any failure to secure
correct TINs is due to reasonable cause.
LEHIGH ACRES FIRST NATIONAL BANK
("Customer")
By:
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President & CEO
Subscribed and sworn to before me
this day of , 1999.
------ --------
--------------------------------------
-------------------------------------- Notary Public
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My Commission expires:
-------------------
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SCHEDULE 1.2
AFFILIATES
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SCHEDULE 4.2
CONVERSION PLAN
The schedule listed below has been developed based on the information provided
to date. Time frames and activities are subject to change as the project is
further defined. In addition to the schedule below, an issues list accompanies
this Schedule 4.2 to outline specific responsibilities which are part of this
Conversion project plan. The issues list documents the parties' understandings
and commitments as of the Effective Date, and shall be supplemented throughout
the Conversion Period as additional information is made available and further
agreements are made by the parties.
WEEKS PRIOR
TO CONVERSION EVENT
26 WEEKS PROJECT ORGANIZATION AND ADMINISTRATION
Specific individuals to support this Conversion will be
assigned at the Customer and at M&I. Internal project
initiation documents will be completed, and a detailed
project plan will be developed at M&I.
24 WEEKS PROJECT KICKOFF MEETING
A kickoff meeting is held at the bank to introduce M&I
Conversion Project Management to the Customer's project
team. The overall Conversion process will be reviewed.
Specific details will be discussed regarding project
scope, roles and responsibilities, Conversion major
events, and critical success factors.
EQUIPMENT/NETWORK ASSESSMENT
Each office will be visited to record the layout of each
location from a network perspective and to inventory
existing equipment, including terminals, printers, ATM
machines, controllers, and modems. This information will
be evaluated to determine requirements for the future.
HIGH-LEVEL APPLICATION AND OPERATIONS REVIEW
A discussion of each application will be conducted at a
high level to better understand services provided to
existing customers. Current operational processes
supported, such as item capture, statement rendering,
and exception items, will be reviewed as well as
interfaces to the current processor to clarify service
requirements and special needs.
CONVERSION TAPES ORDERED
Conversion tapes will be ordered from the appropriate
service providers.
22 WEEKS EQUIPMENT/NETWORK PLAN DEVELOPMENT
Based on the Equipment/Network Assessment, an Equipment/
Network Plan with a network design and hardware/software
requirements will be developed.
STAFF TRAINING AT M&I
Key individuals from the Bank will attend application
training at M&I to help with Conversion analysis and to
prepare to train others at the Bank.
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20 WEEKS MIFIL REPORTS CREATED
M&I reports will be produced using the Conversion
test tapes to list each field, all values found in
each field, and the number of occurrences of each
value.
18 WEEKS PRODUCT MAPPING
Meetings will be conducted with M&I product support
representatives to review the business processes
supported by the Bank based on the product knowledge
of Bank personnel current application documentation,
and Conversion file record layouts. Each field will
be discussed for clarification and determination of
the corresponding use on the M&I System. All backroom
support will be reviewed, a general training plan
will be developed, and enhancements will be
identified.
16 WEEKS TRAINING BANK AND TRAINING NETWORK ESTABLISHED
A training Bank will be set up on the M&I system to
facilitate training of Bank staff and testing of the
Conversion. The appropriate network and equipment
will be installed at designated training locations.
10 WEEKS TEST REPORT REVIEW
Conversion Test Reports will be reviewed by the
product support representative with key contacts at
the Bank to verify accuracy of the Conversion
process. Issues will be identified and addressed.
OPERATIONAL ANALYSIS
Business processes, as planned,
will be reviewed to confirm that system parameters
and processes are aligned with operational
procedures. Issues win be identified and addressed.
6 WEEKS BANK NETWORK INSTALLED
The network to support all Bank locations will be
installed. As a general rule, one terminal will be
installed at each location in preparation for
Readiness Review. The remainder of the equipment
will be installed during the last few days before
the Conversion.
4 WEEKS READINESS REVIEW
This is a three-day test of our preparedness for the
live Conversion with M&I project staff on-site for
support. Test scripts will be distributed to Bank
personnel at each location for data entry on the
training Bank. Nightly posting will be run with item
capture test files as input, reports will be
produced, and the test Bank will be balanced each
day. Bank personnel will be asked to support all
functions of this test using operational procedures
from data entry to balancing. This will give Bank
staff a chance to practice using the system and gain
confidence before dealing with their customers in a
production environment. It also will serve to
validate network configuration, interface processes,
staff training, and operational procedures. Issues
will be identified and addressed.
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2 WEEKS FINAL PREPARATION FOR CONVERSION
Technical setup for the Conversion will be reviewed
for accuracy, and follow-up calls will be made to
external firms supporting the Bank to confirm
previously made arrangements (Federal Reserve,
current software vendors, ATM support, etc.). A
detailed Conversion Weekend Plan will be developed
and distributed to all key contacts.
0 WEEKS FILES CONVERTED, "LIVE" ON M&I
Files will be converted to M&I over Conversion
weekend, after posting on the old processor for
Friday night.
CONVERSION SUPPORT ON-SITE
The M&I project manager and product support
representatives will be on-site the week following
Conversion to support Bank personnel.
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SCHEDULE 5.1
ADP SERVICES
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SCHEDULE 5.3
ACH SERVICES
A. Definitions. The following terms, as referenced from the
NACHA Rules, shall have the following meanings for the purposes of the
Agreement:
1. "Applicable Law" means the NACHA Rules, the rules of
local ACH Associations, the rules of any and all ACH Operators, and other
applicable law.
2. "Automated Clearing House Operator" or "ACH Operator"
means the central clearing facility, operated by a Federal Reserve Bank ("FRB")
or a private organization, which receives entries from the ODFI or the Third
Party processor acting as an agent for the ODFI, and distributes entries to the
appropriate RDFI or the Third Party processor acting as an agent for the RDFI,
and performs the settlement functions for the affected financial institutions.
3. "Originating Depository Financial Institution" or
"ODFI" means the institution that receives the payment instructions from the
Originators and forwards the entries to the ACH Operator.
4. "Originator" means a person that has authorized an
ODFI to transmit a credit or debit entry to the deposit account of an RDFI.
5. "Receiving, Depository Financial Institution" or
"RDFI" means the institution that receives ACH entries from the ACH Operator and
posts them to the accounts of its depositors.
B. General. Customer hereby authorizes M&I to initiate and
receive automated clearing house debit and credit entries, adjustments to debit
entries and credit entries to Customer's account to be set up during the
Conversion Period, to credit and/or debit the same to such account, and to
provide various ACH services, as described below, to Customer pursuant to the
terms and conditions specified in this Schedule 5.3. The ACH entries covered
shall hereinafter be referred to as the "ACH Entries." Except as otherwise
provided herein, the terms used in this Schedule 5.3 shall have the same
meanings as ascribed to
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such terms in the Operating Rules of the National Automated Clearing House
Association, as in effect from time to time (the "NACHA Rules").
C. ACH Services.
1. M&I shall act as Customer's agent for initiating and
transmitting ACH Entries to the appropriate ACH Operator. In addition, M&I shall
act as Customer's agent for receiving ACH Entries from an ACH Operator. For all
ACH Entries initiated by M&I pursuant to this Agreement, Customer, and not M&I,
shall be the ODFI when M&I receives payment instructions directed to Customer's
routing number from an Originator, or the RDFI when M&I receives ACH Entries
directed to Customer's routing number from an ACH Operator.
2. M&I shall transmit ACH Entries in accordance with the
format requirements of the NACHA Rules to an ACH Operator using Customer's
Routing Number. M&I shall receive ACH Entries on behalf of Customer that are
transmitted to M&I by an ACH Operator. M&I shall provide reports to Customer, as
described in the ACH User Manual. If agreed to between Customer and M&I, M&I
shall provide for the posting of ACH Entries to Customer deposit accounts.
3. All warranties of an ODFI or RDFI prescribed under
Applicable Law shall be in effect and applicable to Customer, and not M&I, with
respect to all ACH Entries.
4. M&I may provide additional ACH Services as requested
by Customer and agreed to by M&I in writing.
D. M&I PC ACH Services. Customer may provide its business
depositors with personal computer access to M&I's ACH Services in accordance
with the ACH User Manual (the "PC ACH Service"). Customer shall be responsible
for informing M&I prior to permitting a new depositor to begin using the PC ACH
Service. Customer also shall inform M&I whether any credit limit shall apply to
the ACH Entries of a depositor utilizing the PC ACH Service.
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E. Customer Depositor Inquiries, Erroneous or Rejected ACH
Entries.
1. Customer shall be responsible for handling all
inquiries of its depositors regarding ACH Entries, including inquiries regarding
credits or debits to a depositor's account resulting from an ACH Entry. M&I
agrees to reasonably assist Customer in responding to such inquiries by
providing information to Customer concerning ACH Entries.
2. As described in the ACH User Manual, M&I shall
provide reports to Customer showing errors and rejections resulting from ACH
Entries transmitted on behalf of Customer during a particular day. It shall be
Customer's responsibility to research and correct such ACH Entries.
F. Credit Limits.
1. Customer may from time to time establish one or more
credit limits applicable to ACH Entries involving a particular depositor or all
depositors of Customer. Such credit limits shall be established by written
notice from Customer and shall be implemented by M&I as soon as reasonably
practicable.
2. In the event that an ACH Entry exceeds a credit limit
communicated to M&I by Customer, M&I shall promptly give oral or written notice
to Customer. Customer may either approve the ACH Entry as an exception to the
credit limit, request that it be held over to the next day, or reject such ACH
Entry provided, however, that any exception to the credit limit must be approved
in writing by Customer.
G. User Manuals.
1. M&I shall provide Customer with a copy of the ACH
User Manual and any updates to such manual. Customer agrees to comply with the
requirements of such manual.
2. It shall be Customer's responsibility, and Customer
is authorized, to forward a copy of the applicable portion of the ACH User
Manual, and any updates
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thereto, to Customer's depositors that utilize the PC ACH Service.
H. NACRA Rules. Prior to providing ACH origination services,
Customer shall enter into an agreement with the Originator in compliance with
the NACRA Rules, including but not limited to the requirement of the NACHA Rules
that such agreement include a provision whereby the Originator agrees to be
bound by the NACHA Rules. M&I shall have no responsibility for ensuring that the
Originators have entered into such agreements.
I. Limitation On Liability.
1. M&I is acting solely in its capacity as agent for
Customer in connection with the initiation, transmission and receipt of ACH
Entries on behalf of Customer. As agent, M&I shall be under no obligation to
provide funds to any party to settle for any ACH Entry received or initiated by
M&I. Upon notification from Customer of the occurrence of an error or omission
with respect to an ACH Entry, M&I shall promptly furnish corrected ACH
Entry(ies) to an ACH Operator, unless the NACHA Rules prohibit the processing of
the correct ACH Entry(ies). Notwithstanding any provision in the Agreement to
the contrary, M&I's liability to Customer for claims arising out of the ACH
Services performed by M&I pursuant to this Schedule 5.3 shall be limited to the
extent of errors and omissions which are caused by M&I's gross negligence or
willful misconduct and which cannot be remedied through the processing of
appropriate corrected ACH Entry(ies).
2. M&I shall make reasonable efforts to deliver ACH
Entries to Customer or to an ACH Operator, as appropriate, prior to any
applicable deadline for such delivery. M&I does not guarantee timely delivery.
M&I shall have no liability to Customer as a result of any late delivery, except
to the extent such late delivery is (i) caused by the gross negligence or
willful misconduct of M&I and (ii) made more than 24 hours after its scheduled
deadline.
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SCHEDULE 5.
DATA WAREHOUSE SERVICES
The following terms and conditions shall govern the provision of Data Warehouse
Services by M&I to Customer.
1. Definitions.
1.1. "Data Warehouse Services" shall mean the Operational Data
Warehouse, the Management Data Warehouse, and the Information
Desktop, or any one of the foregoing.
1.2. "Information Desktop" shall mean the information support
system developed by M&I to access key business information
contained in the Management Data Warehouse and the
Operational Data Warehouse. The tools included in the
Information Desktop as of the Effective Date are (a)
InFormatter; (b) Report Edge; and (c) Data Dictionary. Me
software for the Information Desktop tools will reside on
equipment located at Customer's facility and operated by
Customer's employees.
1.3. "Management Data Warehouse" shall mean the data which is
translated, mapped, summarized and downloaded from the
Operational Data Warehouse, and stored in a relational
database. The Management Data Warehouse is operated on a
Unix-based processing platform.
1.4. "Operational Data Warehouse" shall mean extracts of M&I's
legacy applications in a MVS environment, as well as a
limited number of third party applications for which M&I has
created and maintains interfaces.
All other capitalized terms not defined herein shall have the meaning
ascribed to them in the Outsourcing Agreement
2. License.
2.1. Grant. Subject to the terms and conditions of the Agreement,
M&I grants Customer a perpetual nonexclusive,
nontransferrable license to use the Information Desktop
solely for Customer's own internal processing and computing
needs and for no other purpose. Customer shall be entitled to
use the Information Desktop in a productive mode only at the
locations specified on attached Exhibit A. Copies of
Information Desktop used for archival testing, temporary
backup or temporary transfer to another site (not to exceed
90 days) shall not be considered productive use.
2.2. Scope. Customer's use of Information Desktop shall be limited
to the number of locations and/or workstations specified on
Exhibit A and for any additional licenses granted by M&I at a
future date. Customer acknowledges and agrees that the
Information Desktop is designed for use with the version of
software made available from time to time by M&I through the
M&I Service Bureau, and that interfacing of the Information
Desktop to other software or mainframe applications is
outside the scope of this Agreement
2.3 Restrictions on Use. Customer shall not (a) distribute, sell
assign or transfer (except as permitted under this Agreement)
or sublicense the Information Desktop, or any part thereof,
to any Third Party; (b) adapt, modify, translate, reverse
engineer, decompile, disassemble, or create derivative works
based on the Information Desktop or any part thereof; (c)
copy the Information Desktop, in whole or in part, except for
making a single
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archival copy for each Affiliate which copy shall contain the
notices and labels required under this Agreement; (d) use the
Information Desktop in any manner to provide service bureau,
time sharing, shared resource or other computer services to
Third Parties; or (e) export the Information Desktop outside
the United States of America, either directly or indirectly.
3. Training and Consulting Services. Upon request of Customer, M&I
agrees to provide the relationship management consulting services and
user training specified on attached Exhibit B (collectively,
"Consulting Services"). Unless otherwise specified on Exhibit B,
hourly rates for Consulting Services are billable at M&I's
then-current rates. Customer shall reimburse M&I for all reasonable
and actual out-of-pocket expenses incurred by M&I in connection with
the consulting services including supplies, travel, lodging and meals.
Customer pays for their attendees.
4. Performance Standards. M&I agrees to provide the Data Warehouse
Services in accordance with the performance standards set forth on
Exhibit C.
5. Fees. Customer agrees to pay M&I for the Data Warehouse Services in
accordance with attached Exhibit D or, in lieu thereof, the fees
specified on the Fee Schedule (Schedule 8.1) to the Agreement. Payment
shall be made within thirty (30) days after Customer's receipt of
M&I's invoice.
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Exhibit A
Location 1 Number of Licenses:
Name:
Street Address:
City, State Zip:
Location 2 Number of Licenses:
Name:
Street Address:
City, State Zip:
Location 3 Number of Licenses:
Name:
Street Address:
City, State Zip:
Location 4 Number of Licenses:
Name:
Street Address:
City, State Zip:
Location 5 Number of Licenses:
Name:
Street Address:
City, State Zip:
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Exhibit B
TRAINING
CLASS NUMBER OF PRICE PER STUDENT TOTALS
STUDENTS
--------------------------------------------------------------------------------
Introduction to InFormatter (2 days) $600
Advanced InFormatter (2 days) $600
Introduction to Report Edge (2 days) $600
Advanced Report Edge (2 days) $600
Financial Reporting (1 day) $300
--------------------------------------------------------------------------------
TOTAL
NOTE: TRAINING AT A NON-M&I FACILITY INCREASES THE PER DAY RATE BY $5O PER
STUDENT.
CONSULTING
NUMBER OF
SERVICE DAYS/HOURS RATE TOTALS
-----------------------------------------------------------------------------
Call Report: 2 Days $1,500 per day $3,000
Additional Consulting: $ 150 per hour
-----------------------------------------------------------------------------
TOTAL
NOTE: CALL REPORT RULE DEVELOPMENT CONSULTING PROVIDED ON A PER QUOTE BASIS.
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Exhibit C
INFORMATION DESKTOP/DATABANK
SERVICE LEVEL AGREEMENT
INFORMATION DESKTOP AVAILABILITY:
This availability refers to the time frames that the Information Desktop can be
used to access the DataBank. The Information Desktop will be able to access
the DataBank during the following time frames:
MONDAY-FRIDAY 7 A.M. TO 10 P.M.
SATURDAY 7 A.M. TO 6 P.M.
SUNDAY NOT AVAILABLE
These times are specific to an institution's time zone. The availability of
Information Desktop does not automatically imply availability of prior day data
updates as explained with the next service level.
AVAILABILITY OF PRIOR-DAY MANAGEMENT DATA WAREHOUSE UPDATES:
Availability of prior-day data updates refers to the time frames for when an
institution's latest IBS application data is available in the DataBank. Due to
varying account volumes and month-end DataBank processing being three times
that of a normal day's processing, two service levels will be established as
follows:
INSTITUTION'S* AGGREGATE
DEPOSIT ACCOUNT VOLUME NORMAL PROCESSING DAY** MONTH-END PROCESSING
---------------------------------------------- --------------------
DAY**
--------------------
< 250,000 ACCTS. 9:30 A.M. NOON
>= 250,000 ACCTS. 10:30 A.M. NEXT DAY
* Institution is defined as the logical grouping of banks forming a
holding company or other higher-level entity.
** Availability times are specific to an institution's time zone.
Note: This excludes Profitability Processing due to re-analysis processing.
Customers using this data will be notified separately concerning Profitability
service levels.
NORMAL PROCESSING DAY
On normal processing days, only the Management Detail is updated. If processing
has been completed prior to Information Desktop availability, data will be
accessible and will reflect the updates from the previous day. If processing is
still occurring upon Information Desktop availability, the updates will not be
available until loading is complete. If processing has not yet started upon
Information Desktop availability, the data in the Management Detail will remain
the same as the prior day until loading begins for the most recent updates.
During the loading process, the Management Detail layer will not be available.
Month-end Snapshot data and Management Summary data are not updated on a normal
processing day and, therefore, will be accessible upon Information Desktop
availability.
MONTH-END PROCESSING DAY
At month-end, all layers of the DataBank are updated. Similar to normal
processing days, if the month-end updates are not started prior to Information
Desktop availability, the prior day's data will be available until loading
begins. Once loading of month-end updates begins, data will not be available
until the load is complete.
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The Status Inquiry function on the Information Desktop will always indicate the
current processing status of the DataBank for your organization. You can use
the Status Inquiry to determine which levels of the DataBank are currently
available.
AVAILABILITY OF MONTHLY ASSET LIABILITY FILES:
This availability refers to when the Asset Liability interface files are
updated with an institution's prior month-end Deposit Loan, General Ledger,
CPI, MCIF, and Investment information. The availability is as follows:
FILE AVAILABILITY
---------------------------
Deposit Fourth Business Day of Month
Loan Fourth Business Day of Month
GL Fourth Business Day of Month
GL Retro Three Business Days Following Date of Retro
Investments
Projected Fourth Business Day of Month
Final Eighth Business Day of Month
CPI Seventh Business Day of Month
MCIF- Tape Shipped By Tenth Business Day
AVAILABILITY OF OTHER FILES
Salespartner/
Bankers Insight Updated Weekly on Monday
CPI Seventh Business Day of Month
AVAILABILITY OF CALL REPORTING FILES
This availability refers to when the Call Reporting interface files are updated
with the prior month's information, using the most current mapping rules
established by a customer. The Call Reporting interfaces will be available four
business days following a Month-End Processing day. Also, data will be
available three business days following the GL retros and the second business
day following a customer refresh of their Call Reporting rules.
SERVICES CONTINUITY:
Services continuity consists of three aspects: hardware and/or system software
component failures, platform failure, and site disaster. Currently, no
redundancy has been implemented in the UNIX processing environment. In the event
of a hardware component failure (such as a system board failure or disk array
failure), the failure will be addressed as soon as possible, with a downtime of
no longer than 24 hours. In the event of a platform failure, a new platform
will be implemented as soon as possible, with a downtime of no longer than two
weeks. In the event of a site disaster, Information Desktop/DataBank will not
have a service level initially. In the event of a platform failure where
service is delayed more than one day, the system will be restored to the last
backup prior to the failure before processing is resumed. Processing associated
with the outage days will not be performed. Processing will resume with the
information available at the point in time the system is restored.
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EXHIBIT D
Information Desktop License Fees:
Please see Schedule 8.1 attached hereto for details.
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SCHEDULE 5.5
ITEM PROCESSING SERVICES
Following is a short description of services performed by M&I Data Services
(M&I., Tampa) These descriptions may be revised from time to time via written
memoranda, signed by an officer of M&I, and attached to this exhibit. For this
Agreement, "Customer" refers to Lehigh Acres First National Bank, and "Client"
refers to the user of Lehigh Acres First National Bank products or services. It
is specifically agreed hereto that Customer will pay M&I and that Customer will
be responsible for the collection of its service charges directly from its
Client for the services rendered by M&I.
1. BULKFILE - Pull daily exception items, maintain inventory control,
perform monthly statement sort, daily fine sort GL and savings items if
required by customer, retain truncated items 15 days, repair DDA debit
rejected items.
2. INCLEARINGS - Receive and capture for posting on-us items from FRB
and other clearing agents, notify the customer of totals received.
Microfilm checks during item capture.
3. MAIL SERVICES - Meter all USPS out going mail and make available for
pre-sort vendor pick-up. Receive, sort and ready for next day delivery
all inter-office mail. Track and invoice customer for postage and
pre-sort expense used.
4. MICROFICHE - Produce fiche of item processing reports on a daily
basis, POD and Inclearing capture runs. Fiche reports will include
capture listing, audit listing, out going cash letters and an all
items listing.
5. NON-POST - Re-qualify items for rerun or return pursuant to the
customer direction. Non-post items include but are not limited to;
account not found, post no transaction and account closed.
6. OUTING RETURN ITEMS - Prepare form, routing the returned item to the
bank of first deposit in the most expedient manner. Make large dollar
notification as applicable. Microfilm all local returns with return
item draft.
7. OVERDRAFT PROCESS - Receive return decision from customer, pull items
identified by the customer for return, review item for guarantees, ▇▇▇▇
them accordingly, and prepare item for return.
8. POD/CAPTURE/TRANSMISSION - Receive proof work from customer location,
debit first transaction sequence, MICR encode items for high speed
sorter processing, prepare proof corrections according to customer
guidelines, capture & balance, produce cash letters for transit items,
reformat data in M&I record layouts, transmit to host processor.
9. RESEARCH AND ADJUSTMENT - Perform photocopy research and adjustments
on cash letters to meet end client and customer requirements. Turn
around time frames will be defined in the Schedule of Services.
Follow-up, clear and reconcile outstanding items in research and
adjustment asset and liability suspense accounts. Customer will
interoffice research request form to M&I.
10. RETURNED DEPOSITED ITEMS - Receive and process according to customer
policy incoming return items. Maintain list of special handling
clients provided by customer. Microfilm returned checks with Returned
Item Notice and mail as directed by customer.
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11. STATEMENT RENDERING - Fold, insert debit items and/or marketing fliers
and meter statements within pre-defined time frames identified in the
Schedule of Services document. Identify special handling accounts,
(e.g. serial sort and special instruction statements), distribute
accordingly, insert missing/extra item notice when applicable.
12. STOP PAYMENTS - Receive Stop Suspect report, pull suspects, determine
match, if match ▇▇▇▇ accordingly and return. Place large dollar
notification calls as appropriate.
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SCHEDULE 7.1
EFD SERVICES
A. Definitions. The following terms shall have the following
meanings for the purposes of the Agreement:
1. "Account" shall mean any account maintained by
Customer's depositors and includes a checking, savings, NOW, money market or
other asset account or credit card account or any one of the various loan
accounts or lease accounts.
2. "ATM" shall mean the cash disbursement automated
teller machines and/or script dispenser or other similar device which conforms
to M&I's standards.
3. "Card" shall mean a plastic card issued by or on
behalf of Customer to Customer's Cardholders for use in effecting Transactions
at Terminals.
4. "Cardholder" shall mean. any person who has, or is
authorized to use, an Account with Customer and to whom a Card and/or PIN is
issued for use in originating Transactions.
5. "Credit Card" means any Card that primarily accesses
an account which is an asset of the Customer or a Third Party for whom Customer
is an agent and who issues the Card.
6. "Debit Card" shall mean any Card that primarily
accesses an Account which is a liability of the Customer.
7. "EFD Services" shall mean the electronic funds
delivery Services set forth in this Schedule.
8. "Item" means any electronic message which
communicates and effects a Transaction between Customer and its depositors
through a Terminal and which includes the date, type and amount of such
Transaction, identification of the depositor, the Customer, the Terminal, the
location of the Terminal, the PIN and authorization codes.
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9. "MasterCard" shall mean MasterCard International,
Inc.
10. "Network" shall mean a shared electronic funds
transfer system operating under a common name whereby financial institutions
are available to route, process and settle certain financial Transactions.
11. "PIN" shall mean a Cardholder's personal
identification number which is used by the Cardholder at the Terminals as one
means of identification of such Cardholder.
12. "POS" means point of sale.
13. "Terminal" means an ATM, a POS device, or any other
device which directly or indirectly is supported by M&I and meets the
specifications of M&I.
14. "Transaction" shall mean any function supported by
M&I and attempted by Cardholders or others at a Terminal and includes: (a) cash
withdrawals from an Account; (b) deposit to an Account; (c) balance inquiries
regarding an Account; (d) transfer from one Account to another Account; (e)
payment enclosed for Credit Cards and loans; and (f) POS authorizations and
settlement.
15. "Visa" shall mean VISA U.S.A., Inc.
B. Customer shall execute applications for membership in Visa
and/or MasterCard. M&I agrees to assist Customer in obtaining sponsorship by an
appropriate financial institution, if necessary. Customer shall provide M&I with
copies of its fully executed Visa and/or Mastercard membership agreements
promptly after receipt by Customer.
C. Customer shall comply with the articles, bylaws, operating
regulations, rules, procedures and policies of Visa and/or MasterCard and shall
be solely responsible, as between Customer and M&I, for any claims,
liabilities, lawsuits and expenses arising out of or caused by Customer's
failure to comply with the same. Customer agrees to maintain an account with a
financial institution approved by M&I and Customer hereby authorizes M&I to
charge any amounts due to M&I, for EFD Services, against any credits due to
Customer to Customer's account whether or not such charges create overdrafts.
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D. Customer understands and agrees that M&I may terminate EFD
services immediately in the event M&I's access to any Network is terminated by
the Network provider.
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SCHEDULE 8.1
FEE SCHEDULE
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SCHEDULE 9.1
PERFORMANCE STANDARDS
UPDATED 4/20/99
A. Batch Processing. M&I will initiate batch processing and have
operations reports(1) available for transmission to Customer or available for
print at an M&I center, within (REPLACE WITH HOURS BASED ON ACCOUNT VOLUMES
BELOW- MINIMUM IS FIVE (5) HOURS) on all processing days in a calendar month
[fifteen (15) hours at year-end] provided M&I receives all input data from
Customer by (STANDARD IS 1:00 A.M C.T. FOR LOWER ACCOUNT VOLUMES). This batch
window is based on (CURRENT ACCOUNT VOLUMES) plus account growth not to exceed
20%. Batch windows shall be adjusted by M&I in consultation with Customer
should account volumes exceed this level. Performance Standard: M&I shall not
miss deliverable identified above more than twice in any calendar month.
B. On-line Availability. M&I will ensure that its on-line computing
facilities are available for the processing of Customer's on-line
transactions at a minimum of ninety-seven point five percent (97.5%) of the
time, as prescribed by Customer, measured over a calendar month at the point of
departure from M&I's communications controller. The time prescribed by Customer
for each processing day for which on-line computing facilities shall be made
available for each product or service is set forth below. Processing day shall
mean any weekday which is not declared a holiday by the Federal Reserve Bank of
Chicago. "Availability" for purposes of this paragraph shall be expressed as a
percentage for each calendar month and shall be the number 100 less the ratio
of (i) time period of unscheduled outages over (ii) total time prescribed less
the time period of scheduled outages.
(1) OPERATIONS REPORTS ARE DEFINED AS STANDARD SYSTEM REPORTS AS LISTED IN
APPENDIX A OF THE M&I DATA SERVICES PRODUCT PRICE LIST EXCLUDING NEW RETIREMENT
SYSTEM REPORTS.
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Service Availability
Product/Service Central Time
ATM (BASE24 AVAILABILITY)(2)
Monday - Thursday 12:01 a.m. - 12:00 midnight
Friday 12:01 a.m. - 12:00 midnight
Saturday 12:01 a.m. - 12:00 midnight
Sunday 12:01 a.m. - 12:00 midnight
CARDBASE MANAGEMENT SYSTEM
Monday - Thursday 7:00 a.m. - 10:00 p.m.
Friday 7:00 a.m. - 10:00 p.m.
Saturday 7:00 a.m. - 10:00 p.m.
Sunday (nonstandard) 7:00 a.m. - 10:00 p.m.
CIS & DEPOSIT SYSTEM
Monday - Thursday 7:00 a.m. - 10:00 p.m.
Friday 7:00 a.m. - 10:00 p.m.
Saturday 7:00 a.m. - 10:00 p.m.
Sunday (nonstandard) 7:00 a.m. - 10:00 p.m.
GENERAL LEDGER
Monday - Thursday 7:00 a.m. - 8:00 p.m.
Friday 7:00 a.m. - 8:00 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
LOAN SYSTEM
Monday - Thursday 7:00 a.m. - 10:00 p.m.
Friday 7:00 a.m. - 10:00 p.m.
Saturday 7:00 a.m. - 10:00 p.m.
Sunday (nonstandard) 7:00 a.m. - 10:00 p.m.
INFORMATION DESKTOP (ACCESS TO 2 DAY
OLD DATA)
Monday - Thursday 7:00 a.m. - 10:00 p.m.
Friday 7:00 a.m. - 10:00 p.m.
Saturday 7:00 a.m. - 6:00 p.m.
INFORMATION DESKTOP (ACCESS TO PRIOR
DAY DATA)
Acct Volume NORMAL PROCESSING DAY
<250,000 accounts 9:30 a.m. central time
= and > 250,000 accounts 10:30 a.m. central time
MONTH-END PROCESSING
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12:00 p.m.
Next Day
TELLER SYSTEM
Monday - Thursday 6:45 a.m. - 10:00 p.m.
Friday 6:45 a.m. - 10:00 p.m.
Saturday 6:45 a.m. - 10:00 p.m.
Sunday (nonstandard) 6:45 a.m. - 10:00 p.m.
IRS GOVERNMENT REPORTING SYSTEMS
Monday - Thursday 7:00 a.m. - 10:00 p.m.
Friday 7:00 a.m. - 10:00 p.m.
Saturday 7:00 a.m. - 10:00 p.m.
Sunday (nonstandard) 7:00 a.m. - 10:00 p.m.
ACCOUNT ANALYSIS
Monday - Thursday 7:00 a.m. - 10:00 p.m.
Friday 7:00 a.m. - 10:00 p.m.
Saturday 7:00 a.m. - 10:00 p.m.
Sunday (nonstandard) 7:00 a.m. - 10:00 p.m.
SAFE BOX
Monday - Thursday 7:00 a.m. - 10:00 p.m.
Friday 7:00 a.m. - 10:00 p.m.
Saturday 7:00 a.m. - 10:00 p.m.
Sunday (nonstandard) 7:00 a.m. - 10:00 p.m.
VRU (MONEY TALKS)(2)
Monday - Thursday 12:01 a.m. - 12:00 midnight
Friday 12:01 a.m. - 12:00 midnight
Saturday 12:01 a.m. - 12:00 midnight
Sunday 12:01 a.m. - 12:00 midnight
ACCOUNTS PAYABLE
Monday - Thursday 7:00 a.m. - 8:00 p.m.
Friday 7:00 a.m. - 8:00 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
FIXED ASSETS
Monday - Thursday 7:00 a.m. - 8:00 p.m.
Friday 7:00 a.m. - 8:00 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
BANK CONTROL
Monday - Thursday 7:00 a.m. - 6:45 p.m.
Friday 7:00 a.m. - 9:30 p.m.
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Saturday 7:00 a.m. - 4:30 p.m.
ACCOUNT RECONCILIATION
Monday - Thursday 7:00 a.m. - 6:45 p.m.
Friday 7:00 a.m. - 9:30 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
DEPOSIT TELLER(2)
Monday - Thursday 12:01 a.m. - 12:00 midnight
Friday 12:01 a.m. - 12:00 midnight
Saturday 12:01 a.m. - 12:00 midnight
Sunday 12:01 a.m. - 12:00 midnight
(2) M&I's objective is to provide 24 X 7 hour availability for these
systems. M&I does, however, need to perform, regular technical maintenance
(e.g., NCP maintenance), CPU IPLS, DASD installs, HIS gens, etc.) This type of
maintenance is performed between 2:00 a.m. and 6:00 a.m., CST/CDT. These
activities may result in system downtime during this window.
C. Processing Time. M&I will process transactions in an average of
2.5 seconds for teller transactions (not to exceed six (6) seconds for five
percent (5%) of all transactions per month) and in an average of three point
five (3.5) seconds (not to exceed seven (7) seconds for five percent (5%) of
all transactions per month) for CRT transactions as measured over a calendar
month, from the time the transaction is sent by the Customer's controller or
gateway to the time the processed data is returned to the Customer's controller
or gateway. Should M&I not be able to perform in accordance with the
Performance Standards because Customer failed to acquire network or equipment
recommended by M&I, or such additional network or equipment as may be
reasonably necessary based on the circumstances, M&I shall notify Customer in
writing and Customer shall either acquire such network and/or equipment or
accept the response time that is achieved.
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SCHEDULE 11.1
TERMINATION FEE
A. Termination for Convenience. Except as set forth in Paragraph D below,
if Customer elects to terminate this Agreement for any reason, Customer shall
pay M&I the Termination Fee computed in accordance with this Schedule 11.1. The
Termination Fee shall be paid at least sixty (60) days prior to the Effective
Date of Termination. In addition to the foregoing, Customer shall pay to M&I any
amortized but unpaid Conversion fees and all reasonable costs in connection with
the disposition of equipment, facilities and contracts specifically related to
M&I's performance of the Services under this Agreement.
B. Termination for Cause by M&I. If M&I terminates this Agreement in
accordance with Sections 11.2 or 11.3 of the Agreement, Customer shall pay M&I
the Termination Fee as set forth in this Schedule 11.1. The Termination Fee
shall be paid at least sixty (60) days prior the Effective Date of Termination.
In addition to the foregoing, Customer shall pay to M&I any amortized but unpaid
Conversion fees and all reasonable costs in connection with the disposition of
equipment, facilities and contracts specifically related to M&I's performance of
the Services under this Agreement.
C. Termination for Cause by Customer. If Customer terminates this
Agreement in accordance with Sections 11.2, 11.3 or 11.4, then Customer shall
not be obligated to pay M&I the Termination Fee.
D. Termination Fee. The Termination Fee shall be an amount equal to sixty
percent (60%) of the Estimated Remaining Value.
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