EXHIBIT 10.8
Data processing Agreement with Electronic Data Systems Corp.
AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES
THIS AGREEMENT ("Agreement") is between Electronic Data Systems Corporation
("EDS"), a Delaware corporation with an address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, and AMERICAN COMMERCIAL BANK ("Customer"), a California state-
chartered bank with an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS, Customer desires to purchase certain information technology
services from EDS, a provider of such services.
NOW, THEREFORE, Customer and EDS hereby agree as follows:
ARTICLE I - DEFINITIONS
1.1 DEFINITIONS. In this Agreement:
(a) "Account Record" is an end-customer account (including, without
limitation, any open or closed DDA/checking account, savings
account, certificate of deposit account, or loan account) that
is maintained on the EDS System during the applicable month.
(b) "Additional Services" are the Services described in
Section 3.1(d).
(c) "Basic Services" are the Services listed in Section I of Schedule A.
(d) "Business Day" is each weekday, Monday through Friday, which is
not a holiday of Customer.
(e) "Conversion Services" are the Services described in Section
3.1(c).
(f) "CPI" is the Consumer Price Index for All Urban Consumers, U.S.
City Average, for All Items (1982-1984=100) as published by the
Bureau of Labor Statistics of the U.S. Department of Labor. If
the Bureau of Labor Statistics stops publishing the CPI, the
parties will substitute another comparable measure published by a
mutually agreeable source. However, if such change is merely to
redefine the base period for the CPI from 1982-1984 to some other
period, the parties will continue to use the CPI but will, if
necessary, convert the two CPI's being compared to the same basis
by multiplying one of them by the appropriate conversion factor.
(g) "Customer Systems" are the Systems listed in Schedule D to be
provided by Customer for use in conjunction with EDS Systems.
(h) "Data Center" is the space at one or more locations where EDS
performs Services, excluding Customer locations.
(i) "EDS Systems" are all Systems, except for Systems provided by
Customer, used by EDS to provide Services, including without
limitation any improvements, modifications, or enhancements made by
EDS to any System and provided to Customer under this Agreement. The
term "EDS Systems" includes, without limitation, the ITI Premier
systems described in Schedule A.
(j) "Effective Date" is the date that this Agreement is executed by
EDS pursuant to Section 9.11.
(k) "Equipment" is all telecommunications lines, modems, and other
equipment, including without limitation terminals, control units,
ports, logical units, and all related data transmission service
required by EDS for Customer to access the EDS Systems, transmit
data to EDS, and receive reports and other output from EDS.
(l) "Initial Term" is defined in Section 2.1.
(m) "ITI" is Information Technology, Inc.
(n) "Operational Date" is the later of (i) the Effective Date, or
(ii) the first day on which any Conversion Services are
completed and Customer has the capability to input transactions
or data for processing by EDS. If the Operational Date occurs
after the Effective Date, EDS will notify Customer of the
Operational Date by delivery of a notice to Customer in the form
attached as Attachment 1 to Schedule A.
(o) "Optional Services" are the Services listed in Schedule B.
(p) "PC Software" means the PC-based software applications to be
utilized by Customer in connection with the Services, as such
software applications are described in Section I(a) of Schedule
A.
(q) "Renewal Term" is defined in Section 2.1.
(r) "Service" or "Services" are all of the services to be provided by
EDS under this Agreement, which include the Basic Services,
Optional Services, Conversion Services and Additional Services.
(s) "System" or "Systems" are (i) computer programs, including
without limitation software, firmware, application programs,
operating systems, files and utilities; (ii) supporting
documentation for such computer programs, including without
limitation input and output formats, program listings, narrative
descriptions, operating instructions and procedures, user and
training documentation, special forms, and source code; and (iii)
the tangible media upon which such programs are recorded, including
without limitation chips, tapes, disks and diskettes.
Other terms are defined elsewhere in this Agreement.
ARTICLE II - TERM
2.1 TERM. This Agreement will begin on the Effective Date and, unless
terminated earlier under Section 7.3, 7.4, 7.5, 7.6, or 9.5, will continue
for a period of five years from the Operational Date (the "Initial Term").
Thereafter this Agreement will automatically renew for successive terms of
two years each (the "Renewal Terms") unless either party gives the other
party written notice at least six months prior to the expiration date of
the Initial Term or the Renewal Term then in effect that the Agreement will
not be renewed beyond such term.
ARTICLE III - EDS RESPONSIBILITIES
3.1 SERVICES PROVIDED. EDS or its subcontractors will provide Customer with the
following Services:
(a) BASIC SERVICES. Customer's requirements for Basic Services.
(b) OPTIONAL SERVICES. The Optional Services that Customer requests and
EDS agrees to provide.
(c) CONVERSION SERVICES. On a mutually agreeable schedule EDS will
provide those services and instructions ("Conversion Services")
reasonably required for Customer to convert to and use the EDS
Systems as described in Section II of Schedule A. Customer will
cooperate in the conversion effort and timely provide whatever
information, data, clerical and office support, management
decisions, approvals, and sign-offs that EDS reasonably requires.
According to a plan to be developed by Customer and EDS, EDS will
train a mutually designated group of Customer's personnel in the
proper use of the EDS Systems for the charges set forth in
Section III(b), Section III(c), Section III(d) and Section III(e)
of Schedule C. Additional training in the proper use of the EDS
systems will be provided as an Additional Service. Customer will
cooperate with EDS in scheduling training in conjunction with
Customer's conversion to the EDS Systems. In connection with the
Conversion Services, the parties will also comply with their
respective obligations, as described in Schedule E.
(d) ADDITIONAL SERVICES. If Customer requests EDS to perform any Service
which is not a Basic Service, an Optional Service or a Conversion
Service, then EDS may provide such service as an "Additional Service".
3.2 GENERAL TERMS RELATING TO SERVICES. EDS will:
(a) Beginning on the Operational Date, operate the EDS Systems at the
Data Center, and accept data and other input from Customer. EDS
will not be responsible for the loss of any input or output
during transportation to or from the Data Center.
(b) Provide all Equipment at Customer's expense, including related
shipping, installation, and maintenance charges, and advise
Customer on the compatibility of its Equipment with the EDS
Systems. Customer may elect, with EDS' approval, which will not
be unreasonably withheld, to provide such Equipment at Customer's
expense, subject to charges for Additional Services required for
EDS Systems access or configuration.
(c) Provide for Customer's use one copy of EDS' standard user
documentation and one copy of any revisions describing the
preparation of input for, and use of, output from the EDS
Systems. Such documentation will address the reports
2
provided under this Agreement. Upon Customer's request, EDS will
provide additional copies of such documentation at EDS' then standard
charges.
(d) Correct any errors in customer files that result in errors in
reports or other output, including without limitation microfiche
or electronic transmissions, where such errors (i) are due
solely to either malfunctions of EDS' equipment or the EDS
Systems or errors of EDS' operators, programmers or other
personnel, and (ii) are called to EDS' attention within the time
frames specified in Section 4.3, EDS will, to the extent
reasonably practicable, correct any other errors as an Additional
Service.
(e) Establish, modify, or substitute from time to time any Equipment,
processing priorities, programs, or procedures used in the
operation of the EDS Systems or the provision of the Services
that EDS reasonably deems necessary, and notify Customer of any
such changes that will affect Customer's operations.
(f) Install and provide, at EDS' expense, all standard or regular
updates and releases received from ITI with respect to EDS Systems.
(g) Perform the Services in accordance with the service level
standards (the "Performance Standards") described in Schedule F.
3.3 AUDITS. EDS will provide auditors and inspectors that Customer designates
in writing with reasonable access to the Data Center for the limited
purpose of performing audits or inspections of Customer's business. EDS
will provide to such auditors and inspectors reasonable assistance, and
Customer will compensate EDS for any Additional Services provided in
connection with the audit or inspection. EDS will not be required to
provide access to data of other EDS customers.
3.4 REGULATORY COMPLIANCE. EDS will endeavor to maintain the EDS Systems so
that they will not be disapproved by any federal or state regulatory
authority with jurisdiction over Customer's business. If Customer believes
that any modifications to the EDS Systems are required under any laws,
rules, or regulations. Customer will promptly so inform EDS. EDS will
perform any modifications to the EDS Systems or recommend changes to
operating procedures of Customer that EDS determines are necessary or
desirable: provided, that if any such changes or modifications result in a
significant increase in EDS' cost of providing Services, EDS will be
entitled to increase the charges under this Agreement by an amount that
reflects a pro rata allocation of EDS' increased cost among the applicable
EDS customers. New or enhanced EDS System features, functions, reports, or
other Services that may result from such modifications or recommendations
may be provided as an Additional Service. Notwithstanding the foregoing,
Customer acknowledges that the EDS Systems may, from time to time, consist
in part of System(s) licensed by EDS from third-party vendor(s) and,
therefore, EDS shall have no duty or responsibility to modify any such
third-party System under this Section 3.4 except to the extent that the
vendor thereof has such a duty or responsibility to modify such System
pursuant to the applicable license agreement between EDS and such vendor.
3.5 FINANCIAL STATEMENTS AND EDP AUDIT. Upon request, EDS will provide at no
charge one copy of EDS' most recent audited financial statements to
Customer. Upon request, EDS will also provide at no charge to Customer one
copy of EDS' most recent independent Data Center EDP audit.
3.6 PC SOFTWARE. EDS will either (i) license to Customer or (ii) arrange with
the appropriate third party vendor for a direct license, or a sublicense
through EDS, to Customer of the PC Software. Customer will execute any
such license or sublicense that may be required by such vendor and will be
responsible for compliance with all terms and conditions thereof. Such
license or sublicense will provide for Customer to have the use of the PC
Software at all times during the term of this Agreement.
ARTICLE IV - CUSTOMER RESPONSIBILITIES
4.1 MAINTENANCE OF EQUIPMENT. Customer will maintain all Equipment owned or
leased by Customer in good working order in accordance with manufacturer's
specifications.
4.2 PROVISION OF FORMS. Unless otherwise agreed in writing, Customer will
provide or pay for all forms required by Customer. These forms will
conform to EDS' reasonable specifications. Customer will also provide all
forms produced or printed at Customer's premises and required for the
performance of Services, or will pay mutually agreed charges to EDS for
such forms if provided by EDS at Customer's request.
4.3 CORRECTION OF REPORTS AND OUTPUT. Customer will balance reports to verify
master file information and will inspect and review all reports and other
output (whether printed, microfiched or electronically
3
transmitted) created from data provided by Customer to EDS. Customer will
reject all incorrect reports or output within two Business Days after
receipt of daily reports or output, within five Business Days after receipt
of annual. quarterly or monthly reports or output. and within three
Business Days after receipt of all other reports or output.
4.4 PROVISION OF DATA. Customer will be responsible for the quality and
accuracy of all data and other input provided to EDS. EDS may, at its
option, return to Customer for correction before processing any data
submitted by Customer which is incorrect, illegible or not in proper form.
If Customer does not provide its data to EDS in accordance with EDS'
specified format and schedule. EDS will use reasonable efforts to
reschedule and process the data as promptly as possible. Related expenses
incurred by EDS will be charged to Customer.
4.5 USE OF SYSTEM, PROCEDURES, ETC. Customer will comply with all operating
instructions for the EDS Systems which are issued by EDS ham mine to min,
Except as otherwise provided in this Agreement, Customer will be
responsible for the supervision, management and control of its use of the
EDS Systems, including without limitation (i) implementing sufficient
procedures to satisfy its requirements for the security and accuracy of the
data and other input Customer provides. (ii) implementing reasonable
procedures to verify reports and other output from EDS within the time
frames specified in Section 4.3, and (iii) specifying the methods of
accrual calculation to be used by EDS in providing the Services from the
options available in the EDS Systems.
4.6 CUSTOMER SYSTEMS. Customer will provide, at Customer's expense. the
Customer Systems. Customer will be responsible for any license or
maintenance fees related to providing the Customer Systems for use by EDS
in connection with the Services. Customer will. at Customer's expense.
ensure that the Customer Systems are at V times compatible with the EDS
Systems and EDS will have no liability hereunder for any delay or failure
to perform Services which arises as a result of the failure of Customer
to maintain any Customer System so that it is compatible with the EDS
Systems.
4.7 PC SOFTWARE.
(a) Notwithstanding Section 3.2(b). Customer will. at Customers
expense. provide and be responsible for all equipment required
for Customer to use the PC Software ("PC Software Equipment").
(b) Without EDS' prior written consent. Customer will not (i) install
any System other than the PC Software on applicable PC Software
Equipment:(ii) sell, assign, lease, transfer, or disclose to any
third party the PC Software, (iii) use the PC Software for the
commercial benefit of any third party; (iv) copy or reproduce the
PC Software; or (v) reverse assemble, reverse compile, or
otherwise recreate the PC Software. Customer may transfer its use
of the PC Software to a backup or replacement system to the PC
Software Equipment on a temporary or permanent basis provided
Customer gives prior written notice to EDS and discontinues use
of the PC Software on the applicable PC Software Equipment.
4.8 OTHER RESPONSIBILITIES. Customer will also comply with its obligations as
set forth in Schedule E.
ARTICLE V - PAYMENTS TO EDS
5.1 SERVICE CHARGES. Customer will pay EDS for the Services as follows:
(a) For Basic Services, the monthly charges listed in Section I of
Schedule C.
(b) For Conversion Services, the applicable conversion charges listed
in Section HI of Schedule C.
(c) For Optional Services, the monthly charges listed in Section II
of Schedule C.
(d) For Additional Services, EDS' then standard charges for such
Services. or, if EDS then has no standard charges for such
Services. upon whatever other basis that the parties agree.
5.2 ADDITIONAL CHARGES. Customer will also pay EDS the following, if
applicable:
(a) All costs incurred by EDS (i) in mailing reports or other output
to Customer. its customers or third parties. and (ii) in
transporting, shipping, or delivering reports. output. or input
between the. Data Center and Customer's locations.
(b) All actual out-of-pocket costs and expenses, including, without
limitation. travel and travel related expenses, which are
incurred by EDS in
4
providing Services when incurred at Customer's request.
(c) All taxes, however designated or levied. based upon any charges
under this Agreement. or upon this Agreement or the Systems,
Services, or materials provided hereunder, or their use,
including without limitation state and local privilege or excise
taxes based on gross revenue, sales and use taxes, and any taxes
or amounts in lieu thereof paid or payable by EDS in respect of
the foregoing, exclusive, however, of franchise taxes and taxes
based on the net income of EDS.
5.3 TIME OF PAYMENT.
(a) All charges under this Agreement will be due and payable within
ten days of invoice date. Any charges not paid within thirty days
of invoice date will bear interest until paid at a rate equal to
the lesser of 0% per month or the maximum interest rate allowed
by applicable law.
(b) If Customer reasonably disputes in good faith any invoiced
charge, then, no later than ninety days after the date of such
invoice, Customer will give EDS written notice specifying the
reasons for such dispute. Charges not disputed as set forth in
this Section 5.3(b) will be deemed acceptable by Customer.
5.4 COST OF LIVING ADJUSTMENT. No more than once in any twelve month period.
EDS may, at its option and by giving Customer written notice. increase the
charges for Services by a percentage not to exceed the percentage by which
the CPI as of that time is higher than the CPI as of (i) for the first
adjustment, the earlier of the Effective Date or the date of the last
adjustment previously made pursuant to any immediately prior agreement. if
any. under which EDS provided the same or similar Services to Customer. and
(ii) thereafter. the previous time that EDS adjusted its charges to
Customer pursuant to this Section. These increased charges will remain in
effect until EDS adjusts them again pursuant to this Section.
ARTICLE VI - SYSTEMS,
DATA, AND CONFIDENTIALITY
6.1 EDS SYSTEMS. All EDS Systems are and will remain the exclusive property of
EDS or licensees of such EDS Systems. as applicable, and. except as
expressly provided in this Agreement, Customer shall have no ownership
interest or other rights in any EDS System. Customer acknowledges that the
EDS Systems include EDS proprietary information and agrees to keep the EDS
Systems confidential at all times. Upon the expiration or termination of
this Agreement, Customer will return all copies of all items relating to
the EDS Systems which are in the possession of Customer and certify to EDS
in writing that Customer has retained no material relating to the EDS
Systems.
6.2 CUSTOMER'S INFORMATION. Information relating to Customer or its customers
contained in Customer's data files is the exclusive property of Customer
and EDS will only be the custodian of that information. EDS agrees to hold
in confidence all proprietary information of Customer and its customers
provided to EDS in accordance with Section 6.3. However, upon the request
of any appropriate federal or state regulatory authority with jurisdiction
over Customer's business and after EDS has, when reasonably possible,
notified Customer of such request, EDS will allow such authority access to
all records and other information of Customer and its customers in the
possession of EDS and provide as an Additional Service any related
assistance that is required Promptly after the termination or expiration of
this Agreement and the payment to EDS of all sums due and owing, including
without limitation any amounts due under Sections 7.7 or 7.8. EDS will, at
Customer's request arid expense. return to Customer all of Customer's
information. data. and files in EDS' then standard machine-readable format
and media.
6.3 CONFIDENTIALITY. Except as otherwise provided in this Agreement. EDS and
Customer each agree that all information communicated to one by the other
or the other's affiliates, whether before or after the Effective ate.
will be received in strict confidence, will be used only for purposes of
this Agreement. and except for the requirements of Section 6.2 will not be
disclosed by the recipient party. its agents. subcontractors. or
employees without the prior written consent of the other party. Each party
agrees to take all reasonable precautions to prevent the disclosure to
outside parties of such information, including, without limitation, the
terms of this Agreement, except as required by legal, accounting, or
regulatory requirements beyond the reasonable control of the recipient par,
If Customer is required to disclose any proprietary information of EDS in
accordance with any such legal, accounting, or regulatory requirements,
then Customer will promptly notify EDS of such requirement and will
cooperate with EDS (at EDS' expense) in EDS' efforts, if any, to avoid or
limit such disclosure including, without limitation, through obtaining an
injunction or an appropriate redaction of the proprietary information in
5
question. The provisions of this Section will survive the expiration or
termination of this Agreement for any reason.
6.4 SAFEGUARDING DATA INTEGRITY. EDS will maintain internal computer data
integrity safeguards (such as access codes and passwords) to protect
against the accidental or unauthorized deletion or alteration of Customer's
data in the possession of EDS. EDS will provide additional internal
computer data integrity safeguards that Customer reasonably requests as an
Additional Service. EDS will also employ and maintain controlled access
systems in the Data Center.
6.5 CONTINGENCY PLANNING. The parties' hereby agree that their respective
responsibilities under the Agreement with respect to contingency planning
will be as follows:
(a) EDS will develop, maintain and, as necessary in the event of a
disaster, execute a disaster recovery plan (the "EDS Plan") for the
Data Center and will provide to Customer and its auditors and
inspectors such access to the EDS Plan as Customer may reasonably
request from time to time. EDS will not be required to provide access
to information of other EDS customers.
(b) Customer will develop, maintain and, as necessary in the event of
a disaster, execute a business resumption plan (the "Customer
Plan") for all Customer locations and the telecommunications
links between the Customer locations and the Data Center and will
provide to EDS such access to the Customer Plan as EDS may
reasonably request from time to time.
(c) EDS will provide to Customer such information as may be
reasonably required for Customer to assure that the Customer Plan
is compatible with the EDS Plan.
(d) Each party will be responsible for the training of its own
personnel as required in connection with all applicable
contingency planning activities.
(e) Each party's contingency planning activities will comply, as
appropriate, with such of the following regulatory policies as
may be applicable to Customer's business, as the same may be
amended or replaced from time to time: (i) Federal Deposit
Insurance Corporation Bank Letter BL-22-89 dated July 14, 1989;
(ii) Federal Reserve System Supervision and Regulation Number
SR-89-16 dated August 1, 1989; and (iii) Office of the
Comptroller of the Currency Banking Circular Number BC177 dated
July 12, 1989. If compliance with any amendments or replacements
of the policies listed above would significantly increase EDS'
cost of providing Services, EDS will be entitled to increase the
charges under Agreement by an amount that reflects a pro rata
allocation of EDS' increased cost among the applicable EDS
customers.
ARTICLE VII - TERMINATION AND RELATED MATTERS
7.1 PERFORMANCE REVIEW. A designated representative of EDS and a designated
representative of Customer will meet as often as reasonably requested by
either party to review the performance of EDS or Customer under this
Agreement. Written minutes of such meetings may be kept. In the event of
any dispute, controversy, or claim between the parties arising from or
relating to this Agreement (a "Dispute"), then, upon the written request of
either party, each of the parties shall appoint a designated officer to
meet and negotiate in good faith to resolve such Dispute. Formal
proceedings for the arbitration of such Dispute in accordance with Section
7.2 may not be commenced until the earlier of (a) the expiration of thirty
days after the initial request for such negotiations, or (b) either of the
designated officers concluding in good faith and notifying the other
designated officer that amicable resolution through continued negotiation
of the matter in issue does not appear likely.
7.2 ARBITRATION. EDS and Customer stipulate and agree that if they are unable
to resolve any Dispute as contemplated by Section 7.1, then such Dispute
will be resolved by final and binding arbitration by a panel of three
arbitrators (the "Arbitration Panel") in accordance with and subject to the
Commercial Arbitration Rules of the American Arbitration Association
("AAA") then in effect. Following notice of a party's election to require
arbitration, each party will within thirty days select one arbitrator, and
those two arbitrators will within thirty days thereafter select a third
arbitrator. If the two arbitrators are unable to agree on a third
arbitrator within thirty days, the AAA will within thirty days thereafter
select such third arbitrator. Discovery as permitted by the Federal Rules
of Civil Procedure then in effect will be allowed in connection with
arbitration to the extent consistent with the purpose of the arbitration
and as allowed by the Arbitration Panel. Judgment upon the award rendered
in any arbitration may be entered in any court of competent jurisdiction,
or application may be made to such court for a judicial
6
acceptance of the award and an enforcement, as the law of the state having
jurisdiction may require or allow. Unless (a) EDS has commenced a
proceeding or has presented a claim pursuant to this Section 7.2 for
nonpayment of amounts due under this Agreement by Customer, and Customer
has not promptly paid all amounts in dispute into the escrow account
referred to below, or (b) this Agreement has been terminated in accordance
with this Article VII, EDS will continue to provide the Services during any
arbitration proceedings commenced pursuant to this Section 7.2, and
Customer will continue to perform its obligations (including the making of
payments to EDS) in accordance with this Agreement. Up to the maximum
amount in dispute, any disputed payment will be paid pending rendition of
the award by the Arbitration Panel into an escrow account that is
structured by agreement of the parties, or if agreement cannot be reached,
as directed by the Arbitration Panel. Any such escrow account will provide
for the payment of interest on the amounts deposited therein, and the
Arbitration Panel will make the determination regarding distribution of
such deposited amounts plus interest.
7.3 TERMINATION DUE TO ACQUISITION. If fifty percent or more of the stock or
assets of Customer are acquired by another person or entity, whether by
merger, reorganization, sale, transfer, or other similar transaction, EDS
and Customer will negotiate in good faith the terms and conditions upon
which this Agreement may be modified to accommodate such transaction. If
the parties are unable to agree upon such modification, either party upon
written notice to the other may terminate this Agreement upon the
consummation of such acquisition or on a mutually agreeable date
thereafter.
7.4 TERMINATION FOR NON-PAYMENT. If Customer defaults in the payment of any
charges or other amounts due under this Agreement and fails to cure such
default within ten days after receiving written notice specifying such
default then EDS may, by giving Customer at least thirty days prior
written notice thereof, terminate this Agreement as of a date specified in
such notice.
7.5 TERMINATION FOR CAUSE. If either party materially defaults in its
performance under this Agreement except for non-payment of amounts due to
EDS, and fails to either substantially cure such default within ninety days
after receiving written notice specifying the default or, for those
defaults which cannot reasonably be cured within ninety days, promptly
commence curing such default and thereafter proceed with all due diligence
to substantially cure the default then the party not in default may, by
giving the defaulting party at least thirty days prior written notice
thereof terminate this Agreement as of a date specified in such notice.
7.6 TERMINATION FOR INSOLVENCY. If either party becomes or is declared
insolvent or bankrupt, is the subject of any proceedings relating to its
liquidation or insolvency or for the appointment of a receiver,
conservator, or similar officer, or makes an assignment for the benefit of
all or substantially all of its creditors or enters into any agreement for
the composition, extension, or readjustment of all or substantially all of
its obligations, then the other party may, by giving prior written notice
thereof to the non-terminating party, terminate this Agreement as of a date
specified in such notice.
7.7 PAYMENT UPON TERMINATION. The parties acknowledge that upon termination
of this Agreement for any reason, including under Section 7.3, 7.4, 7.5, or
7.6 (but excluding by election by either party not to renew pursuant to
Section 2.1 or termination by Customer pursuant to Section 7.5 or 9.5), EDS
will incur damages resulting from such termination that will be difficult
or impossible to ascertain. Therefore, prior to such termination and in
addition to all other amounts then due and owing to EDS, Customer will pay
to EDS as reasonable liquidated damages an amount equal to the sum of
subsections (a) and (b):
(a) All costs reasonably incurred by EDS in connection with such
termination, including without limitation telecommunication line
disengagement expenses and costs of terminating leases on or
shipping or storing any Equipment provided to Customer by or
through EDS under this Agreement, plus a 25% management fee on
such costs, plus EDS' charges for any Additional Services
reasonably requested by Customer for deconversion assistance and
EDS' then standard charges for the resources utilized to prepare
any test or conversion tapes (together, the "Termination Costs").
EDS may, at its option, invoice Customer for the lesser of (i)
EDS' good faith estimate of the Termination Costs, or (ii) the
aggregate of the charges payable to EDS pursuant to Article V for
the two calendar months preceding the month in which notice of
termination is given. If the actual Termination Costs are greater
or less than the amount of EDS' invoice that is paid by Customer
under the immediately preceding sentence, then Customer will pay
EDS, or EDS will refund to Customer, as the case may be, the
difference between the actual Termination Costs and the amount
paid.
7
(b) Twenty-five percent of the total compensation which would have
been paid or reimbursed to EDS under this Agreement during the
remainder of its term. The amount of total compensation will be
computed by multiplying the total number of months remaining in
the Initial Term or the Renewal Term then in effect from the
effective date of the termination by the average monthly charge
to Customer for Services under this Agreement during the twelve
calendar months immediately preceding the calendar month in which
notice of termination was given, and multiplying that number by
25%. This is expressed mathematically as follows:
(Number of months remaining in term) x (average monthly charge
for Services during the twelve months preceding notice of
termination) X 0.25.
If this Agreement has been in effect less than twelve calendar
months prior to the giving of the notice of termination, then the
parties will compute the amount due under this subsection (b)
using the average monthly charge for Services made during such
lesser number of calendar months. If termination of this
Agreement occurs prior to the Operational Date, then the parties
will compute the amount due under this subsection (b) assuming
that the Operational Date had occurred when scheduled by EDS and
using the average monthly charges reasonably estimated to be paid
by Customer.
All amounts payable under this Section 7.7 will be invoiced and
paid prior to the effective date of such termination and prior to
the release of any test tapes or other data of Customer.
7.8 PAYMENT UPON NON-RENEWAL. If Customer gives or receives notice not to renew
this Agreement pursuant to Section 2.1, or Customer terminates this
Agreement under Section 9.5, Customer will pay to EDS an amount equal to
all amounts then due and payable to EDS, plus, (a) EDS' charges for any
Additional Services reasonably requested by Customer for de-conversion
assistance, (b) EDS' then standard charges for the resources utilized to
prepare any test or conversion tapes, and (c) all other costs reasonably
incurred by EDS in connection with such election not to renew or such
termination that are described in Section 7.7(a) and that relate to
obligations that Customer approved, which extend beyond the then current
term of this Agreement or earlier termination date under Section 9.5. All
amounts payable under this Section 7.8 will be invoiced and paid prior to
the expiration date and prior to the release of any test tapes or other
data of Customer.
ARTICLE VIII - LIABILITY AND INDEMNITY
8.1 LIMITATION OF LIABILITY. Section 3.2(d) sets forth Customer's exclusive
remedies for errors in reports or other output provided by EDS under
this Agreement. If EDS becomes liable to the Customer under this
Agreement for any other reason, then, except for damages arising from
EDS' willful misconduct, the damages recoverable against EDS for all
events, acts, delays, or omissions will not exceed in the aggregate the
compensation payable to EDS pursuant to Section 5.1 of this Agreement
for the lesser of the months that have elapsed since the Operational
Date or the three (3) months ending with the latest month in which
occurred the events, acts, delays or omissions for which damages are
claimed. In no event will EDS be liable for any indirect, consequential
or punitive damages of any party, including third parties, or damages
which could have been avoided had the output provided by EDS been
verified before use. Customer may not assert any cause of action against
EDS of which the Customer knew or should have known more than two years
prior to such assertion. In connection with the conduct of any
litigation with third parties relating to any liability of EDS to
Customer or to such third parties, EDS will have all rights which are
appropriate to its potential responsibilities or liabilities. EDS will
have the right to participate in all such litigation and to settle or
compromise its liability to third parties.
8.2 WARRANTY. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EDS DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW OR
OTHERWISE, CONTAINED IN OR DERIVED FROM THIS AGREEMENT, ANY OF THE
SCHEDULES ATTACHED HERETO, ANY OTHER DOCUMENTS REFERENCED HEREIN, OR IN ANY
OTHER MATERIALS, PRESENTATIONS, OR OTHER DOCUMENTS OR COMMUNICATIONS
WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.3 FORCE MAJEURE. Each party will be excused from performance under this
Agreement, except for any payment obligations for any period and to the
extent
8
that it is prevented from performing, in whole or in part, as a result of
delays caused by the other party or any act of God, war, civil
disturbance, court order, labor dispute, third party nonperformance, or
other cause beyond its reasonable control, including failures,
fluctuations or non-availability of electrical power, heat, light, air
conditioning, or telecommunications equipment. Such nonperformance will
not be a default or a ground for termination as long as reasonable means
are taken to expeditiously remedy the problem causing such nonperformance.
8.4 CROSS INDEMNITY. EDS and Customer each will indemnify, defend, and hold
harmless the other from any and all claims, actions, damages, liabilities,
costs, and expenses, including without limitation reasonable attorney's
fees and expenses, arising out of (a) the death or bodily injury of any
agent, employee, customer or business invitee of the indemnitor, and (b)
the damage, loss, or destruction of any property of the indemnitor.
8.5 RELIANCE ON INSTRUCTIONS. EDS is entitled to rely upon and act in
accordance with any instructions, guidelines or information provided to EDS
by Customer, which are given by persons having actual or apparent authority
to provide such instructions, guidelines or information, and will incur no
liability in doing so. Customer will indemnify, defend, and hold harmless
EDS from any and all claims, actions, damages, liabilities, costs, and
expenses, including without limitation reasonable attorneys' fees and
expenses, arising out of or resulting from EDS acting in accordance with
this Agreement.
ARTICLE IX - MISCELLANEOUS
9.1 BINDING NATURE AND ASSIGNMENT. This Agreement will be binding on the
parties and their respective successors and assigns. Neither party may
assign this Agreement unless it obtains the prior written consent of the
other party, which will not be unreasonably withheld. The following
transactions relating to either party will not require approval of the
other party under this Section: any merger (including without limitation a
re-incorporation merger), consolidation, reorganization, stock exchange,
sale of stock or substantially all of the assets, or other similar or
related transaction in which such party is the surviving entity or, if such
party is not the surviving entity, the surviving entity continues to
conduct the business conducted by such party prior to consummation of the
transaction.
9.2 HIRING OF EMPLOYEES. During the term of this Agreement and for a period
of twelve months thereafter, neither party will, without the prior
written consent of the other, offer employment to or employ any person
employed then or within the preceding twelve months by the other party,
if the person was involved in providing or receiving Services.
9.3 NOTICES. Any notice under this Agreement will be deemed to be given when
delivered by a nationally recognized delivery service or mailed by
registered United States mail, return receipt requested, and addressed to
the recipient party at its address set forth in the first paragraph of this
Agreement and to the attention of its President, in the case of Customer,
or to the attention of Division President, Financial Services Division, in
the case of EDS. Either party may from time to time change its address for
notification purposes by giving the other prior written notice of the new
address and the date upon which it will become effective.
9.4 RELATIONSHIP OF PARTIES. EDS, in providing Services, is acting as an
independent contractor and does not undertake by this Agreement or
otherwise to perform any regulatory or contractual obligation of the
Customer. EDS has the sole right and obligation to supervise, manage,
contract, direct, procure, perform, or cause to be performed, all work
to be performed by EDS under this Agreement.
9.5 MODIFICATION. EDS may from time to time modify any of the provisions of
this Agreement to be effective at any time on or after the expiration of
the Initial Term by giving Customer at least six months prior written
notice describing the modification and the date upon which it will be
effective (the "Modification Date"). If EDS gives Customer notice of a
modification pursuant to this Section, Customer may, by giving EDS
written notice at least three months prior to the Modification Date,
terminate this Agreement as of such Modification Date or at a specified
later date. Unless Customer provides such notice, the modification will
be effective for any period after the Modification Date.
9.6 WAIVER. A waiver by either of the parties of any of the covenants,
conditions, or agreements to be performed by the other or any breach
thereof will not be construed to be a waiver of any succeeding breach or of
any other covenant, condition, or agreement contained in this Agreement.
9.7 MEDIA RELEASES. All media releases, public announcements, and public
disclosures by Customer or Customer's employees or agents relating to this
Agreement or the subject matter of this Agreement, including without
limitation promotional or marketing material, but not including any
announcement intended
9
solely for internal distribution by Customer or any disclosure required by
legal, accounting, or regulatory requirements beyond the reasonable control
of Customer, will be coordinated with and approved by EDS prior to release.
9.8 ENTIRE AGREEMENT. This Agreement and all attached Schedules constitute the
entire agreement between EDS and Customer with respect to the subject
matter of this Agreement. There are no understandings or agreements
relative to this Agreement which are not fully expressed herein and no
change, waiver, or discharge of this Agreement will be valid unless in
writing and executed by the party against whom such change, waiver, or
discharge is sought to be enforced. This Agreement may be amended only by
an amendment in writing, signed by the parties.
9.9 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of California.
9.10 TIME. For purposes of this Agreement, all references to time shall mean
Pacific Time.
9.11 EXECUTION OF AGREEMENT. Three original copies of this Agreement will be
executed and submitted to EDS by Customer. This Agreement will become
effective when EDS executes this Agreement. EDS will return one of the
executed copies to Customer. By executing this Agreement, Customer
represents and warrants that (a) this Agreement has been duly authorized;
(b) such execution does not, and will not, cause a breach by Customer of
any other contract, agreement, or understanding to which Customer is a
party; and (c) this Agreement constitutes a valid, fully enforceable, and
legally binding obligation of Customer. Customer will maintain this
Agreement as an official record of Customer continuously from the time of
its execution.
IN WITNESS WHEREOF, EDS and Customer each have caused this Agreement to be
signed and delivered by its duly authorized representative.
AMERICAN COMMERCIAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Printed
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: President
-----------------------------------
Date: Oct. 29, 1996
------------------------------------
ELECTRONIC DATA SYSTEMS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Printed
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Managing Director - Western Region
-----------------------------------
Date: Oct. 31, 1996
------------------------------------
10
SCHEDULE A
BASIC SERVICES
I. DATA PROCESSING SERVICES.
Effective on the Operational Date (as determined in accordance with the
Agreement including, if applicable, by delivery of written notice of the
Operational Date in the form attached as Attachment I to this Schedule A),
EDS shall provide the following Basic Services for Customer in a service
bureau environment:
(a) BASE SYSTEM
Effective on the Operational Date, the following host-based
application processing modules (the "Base System") will be on-line and
available for Customer access from Customer's terminals as set forth
in this Section I(a) of this Schedule A.
Product Product
Product Name Vendor Code Number
------------ ------ ---- ------
Central Information File ITI CIS 101-000
Demand Deposit Accounting System ITI DDA 102-000
Savings Accounting System ITI SAV 103-000
Certificate of Deposit Accounting System ITI COD 104-000
Loan Accounting System ITI LAS 105-000
General Ledger Accounting System ITI FMS 151-000
Item Entry System ITI IES 106-000
Bulk Filing System ITI BFM 108-101
Express Exception Item System ITI EIM 102-103
Universal Proof Output Module ITI UPO 106-218
Universal Proof Input Module ITI UPI 106-011
ATM File Transfer Module ITI AFT 220-000
Data Communications File Transfer Module ITI DFT 221-000
Paperless Item Module ITI PIM 380-000
Check Reconciliation System ITI CRS 350-000
Premier Reference System ITI PRS 900-203
Premier II GUI Interface ITI
ON-LINE HOST AVAILABILITY
On-line Systems will be available for use from 7:30 a.m. until 6:30
p.m. each Monday through Thursday that is a Business Day, from 7:30
a.m. until 7:00 p.m. each Friday that is a Business Day, and from
9:00 a.m. until 2:00 p.m. each Saturday that is a Business Day.
REPORTS AND REPORT DISTRIBUTION
Paper reports will be available for courier pick-up by 7:00 am. on
Business Days.
Electronic reports available via downloads to Customer on Business
Days.
Monthly, quarterly and annual reports available at 12:00 p.m. on
second Business Day following month-end, quarter-end or year-end.
No report delivery or downloads on Saturdays or Sundays.
CUSTOMER SERVICE TELEPHONE SUPPORT
Monday - Friday Business Days 7:30 a.m. - 5:30 p.m.
ACCOUNT EXECUTIVE SUPPORT
On-site visits once a month.
Upon bank request for scheduled meetings.
TELECOMMUNICATIONS SUPPORT
Monitor data communication lines between Customer and EDS.
A-1
SCHEDULE A
BASIC SERVICE
DATA TRANSMISSIONS -- ACH, ATM AND ITEM PROCESSING
Receipt and origination.
REPORT CARDS
EDS report of measurement of service levels.
Quarterly - delivered mid-quarter
THIRD PARTY REVIEW
One copy per year
PC SOFTWARE
Product Name Vendor
------------ ------
PC-based portion of Output Management EDS
System (OMS)
(b) OTHER SERVICES
Magnetic Tapes and Transmissions (miscellaneous)
Smart Reports (50 reports included in Basic Services)
Application Downloads
Microfiche - Originals/Duplicates
Third Party Review (additional copies)
Daily Notice Printing
Report Printing
Statement Printing
Audit Confirmation Printing
1098/1099 Notice Printing
II. CONVERSION SERVICES
EDS will work with Customer to create a mutually agreeable schedule that
will meet the Operational Date. EDS will provide management oversight for
the conversion process. At Customer's request, EDS may also provide the
following assistance: specification training, specification assistance
including product set-up, chart of accounts creation, end-user training and
on-site conversion assistance for the charges listed in Section III of
Schedule C. Other conversion assistance may be provided as an Additional
Service. EDS will manage the ITI relationship that includes data mapping
performed by ITI on behalf of EDS and the coordination of the mock
conversion. EDS will provide an on-site post conversion support team for
the week following the conversion. A transition process that eliminates the
on-site resource will occur during the second and third week after the
conversion.
The Customer is responsible for, including but not limited to:
- Balancing all appropriate general ledger and control accounts.
- Performing maintenance on the general ledger.
- Set-up of new and maintenance of existing products.
- Design and writing of Smart Reports.
- Creation of new bank policies and procedures based on and around
the ITI system.
- Providing EDS with a list of 24 hour emergency contacts.
- Insuring that bank personnel are provided the time to be trained.
- Communicate changes to EDS that impact the Data Center.
- Responsible for the accuracy and balancing of all blocks entered
on-line.
A-2
ATTACHMENT 1
TO
SCHEDULE A
NOTICE OF DATA PROCESSING OPERATIONAL DATE
__________, 199_
[Customer]
[Customer Address]
Re: Agreement for Information Technology Services dated ________, 199_
(the "Agreement") between ___________________ ("Customer") and
Electronic Data Systems Corporation ("EDS")
Gentlemen:
In accordance with the above-referenced Agreement, please be advised that
the Operational Date for purposes of the Agreement shall be __________, 199_.
Sincerely,
ELECTRONIC DATA SYSTEMS CORPORATION
By:_____________________________________
Printed Name:___________________________
Title:__________________________________
A-3
SCHEDULE B
OPTIONAL SERVICE
I. DESCRIPTION OF OPTIONAL SERVICES
The following host-based application processing modules or services
("Optional Services") will be available no sooner than ninety (90) days
after the Operational Date (except for those Optional Services below marked
by an asterisk (*) indicating availability on or after the Operational Date
and upon at least thirty (30) days prior written notice from Customer to
EDS requesting the Optional Service(s)) for on-line Customer access from
Customer terminals. Optional Services charges are listed in Section II of
Schedule C. It is the Customer's responsibility to review the ITI
documentation, utilize outside resources such as consultants, input module
specifications and train end-users for Optional Services. The Conversion
Services listed in Section III of Schedule C are not intended to include
these Optional Services.
Product Product Product
Optional Services Vendor Code Number
----------------- ------ ------- ------
* Asset Liability Management System ITI ALM 152-003
* Federal Call Reporting Module ITI FCR 391-003
* Automated Credit Reporting Module ITI CRM 105-101
* Currency Transaction System ITI CTS 320-000
Signature Management Module ITI SMM 107-116
▇▇▇▇ Payment Module ITI BPM 372-001
* On-line Teller Terminal Module ITI TTM 107-000
* TTM Interface - EZ Teller ITI TTMZ 107-136
Platform Transfer Module ITI PTM 101-100
PTM Batch Loan Interface - CFI LaserPro ITI PMCB 101-101
PTM Interactive Deposit Interface - CFI DepositPro ITI PMCD 101-105
Electronic Banking Base ITI EBB 370-000
EBB Interface to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇ 370-101
EBB Interface to Execubanc II ITI N/A N/A
EBB Interface to PCbanc ITI PBM 370-200
* Premier Image Director Host Module ITI PDSH 110-001
* 10 User License
Prime Host Module ITI N/A N/A
B-1
SCHEDULE C
SERVICE CHARGES
I. BASIC SERVICES.
(a) DATA PROCESSING SERVICES
(i) INITIAL PAYMENT. Customer will pay EDS $35,000.00 upon
execution of this agreement.
(ii) BASE SYSTEMS. The monthly service fee for Basic Services
provided using the Systems listed in Section I(a) of Schedule
A ("Base Systems") is based on the number of Account Records,
open or closed, maintained on the System at the end of each
month. For Basic Services provided using Base Systems, Customer
will pay EDS $1.05 per Account Record. If the number of
Account Records processed by EDS hereunder, in any month, is
less than 10,000, then for the purposes of this provision, EDS
will be deemed to have processed 10,000 Account Records.
(iii) OTHER SERVICES. The fees for other Basic Services identified
in Schedule A are as follows:
Description Service Fee
----------- -----------
Magnetic Tapes/Transmissions $25.00 per tape/transmission
Smart Reports $15.00 per report (no charge for first 50 reports)
Application Downloads $25.00 per EDS initiated download
Microfiche - Original $1.70 per plate
Microfiche - Duplicates $0.40 per plate
Third Party Review $50.00 per copy (first copy free)
Daily Notice Printing $ No Charge
Report Printing $0.03 per page
Statement Printing $0.03 per page
Audit Confirmation Printing $0.15 per notice
1098/1099 Notice Printing $0.15 per notice
(iv) RE-BILLS. If billed to EDS, the following items will be
re-billed to Customer:
Description Service Fee
----------- -----------
Postage Direct ▇▇▇▇ to Customer
Processing Supplies Direct ▇▇▇▇ to Customer
Courier Direct ▇▇▇▇ to Customer
Telecommunications - to EDS Direct ▇▇▇▇ to Customer
(v) MAN-TIME. The following rates apply:
Description Service Fee
----------- -----------
Conversion/Training Specialists $125.00 per hour
System/Network Consultants $115.00 per hour
Project Manager $110.00 per hour
II. OPTIONAL SERVICES. For Optional Services, Customer will pay the following
fees in addition to the charges listed in Section I of Schedule C:
Description Fee
----------- ---
Asset Liability Management System ALM 152-003 $ No Charge
Federal Call Reporting Module FCR 391-003 $ No Charge
Automated Credit Reporting Module CRM 105-101 $ No Charge
Currency Transaction System CTS 320-000 $ No Charge
Signature Management Module SMM 107-116 $ No Charge
▇▇▇▇ Payment Module BPM 372-001 $ No Charge
C - I
SCHEDULE C
SERVICE CHARGES
Description Fee
----------- ---
On-line Teller Terminal Module TTM 107-000 $ No Charge
TTM Interface - EZ Teller TTMZ 107-135 $ No Charge
Platform Transfer Module PTM 101-100 $ No Charge
PTM Batch Loan Interface - CFI LaserPro PMCB 101-101 $ No Charge
PTM Interactive Deposit Interface - PMCD 101-105 $ No Charge
CFI DepositPro
Electronic Banking Base EBB 370-000 $ No Charge
EBB Interface to Telebanc Intervoice TBM2 370-101 $ No Charge
▇▇▇▇▇ ▇ (service bureau option - unlimited calls)
EBB Interface to Execubanc II N/A N/A $ No Charge
EBB Interface to PCbanc PBM 370-200 $ No Charge
Premier Image Director Host Module - PDSH 110-001 $ No Charge
10 User License
Prime Host Module N/A N/A $ No Charge
III. CONVERSION SERVICES. For Conversion Services, Customer will pay the
following fees:
(a) Conversion Programming (performed by ITI)
Application Conversion Fee
----------- --------------
DDA $2,000.00, plus 0.25 per account
DDA Transaction History $2,000.00, plus 0.02 per transaction
Savings $2,000.00, plus 0.25 per account
Certificate of Deposit $2,000.00, plus 0.25 per account
IRAs $2,000.00, plus 0.25 per account
Installment Loans $3,000.00, plus 0.35 per account
Commercial Loans $3,000.00, plus 0.35 per account
Mortgage Loans $3,000.00, plus 0.35 per account
Closed Loans $3,000.00, plus 0.35 per account
General Ledger Automated Current $3,000.00. plus 0.35 per account
Balance and Balance History -
Transaction History Not Included
(b) Specification Training $125.00 per hour
Optional - $125.00 per hour if provided by EDS.
(c) Specification Assistance $125.00 per hour
Optional - $125.00 per hour if provided by EDS.
(d) End-user Training $125.00 per hour
Optional - $125.00 per hour if provided by EDS.
(e) On-site Conversion Assistance $125.00 per hour
Optional - $125.00 per hour if provided by EDS.
(f) Telecommunications-related Expenses
Telecommunications Hardware & Software Bank Expense
Telecommunications Line Installation & Testing Bank Expense
Data Communications Hardware & Installation Bank Expense
Data Communications Software & Installation Bank Expense
EDS Host Data Communications Testing $2,000.00 one-time
C - 2
SCHEDULE D
CUSTOMER SYSTEMS
"Customer Systems" are the Systems to be provided by Customer for use in
conjunction with EDS Systems. Customer Systems include, but are not limited to
the following:
System Vendor
------ ------
Data Communications Equipment Various
PC Equipment Various
Execubanc II Cash Management System ITI
Home Banking System To Be Determined
Premier Image Director Optical Disk Storage System ITI
Prime Ad Hoc Reporting System ITI
DepositPro CFI
LaserPro CFI
Teller Automation System To Be Determined
InfoConnect Intercom Attachmate
InfoConnect FileXpress Attachmate
ITI Connect ITI
Netware Novell
NT Microsoft
Windows Microsoft
Office Microsoft
D - 1
CUSTOMER RESPONSIBILITIES
I. CUSTOMER RESPONSIBILITIES
In connection with the Basic, Optional, Additional and Conversion Services
and in addition to Customer's other obligations under this agreement,
Customer will:
(a) After initial training provided in connection with the Conversion
Services, Customer will ensure that its personnel maintain a working
knowledge of the EDS System and that new Customer personnel are
properly trained.
(b) Provide to EDS and keep current, by mutually agreeable means, such
information concerning the DDA/Checking Accounts as EDS may reasonably
require.
(c) Ensure that all transmissions, magnetic tapes, documents and other
media which EDS may require to process hereunder are in a format
acceptable to EDS and contain, in machine readable form, the data and
information required by EDS.
(d) Cooperate with EDS in the performance of Services and provide to EDS
such data and information, management decisions, regulatory
interpretations and policy guidelines as EDS reasonably requires.
(e) Select, and be responsible for (financially and otherwise), the
courier service to be utilized in conjunction with the Basic Services
provided herein. The parties agree that such courier service may be
either an existing courier service shared by other EDS customers or,
if Customer in its sole discretion determines that it is not feasible
or desirable to utilize such existing courier service, such other
courier service as is designated by Customer.
(f) EDS will print reports at the Data Center for up to 120 days after the
Operational Date for the charges listed in Schedule C, which will give
Customer time to install an optical disk data storage system and/or
remote printing system at one of their locations. In the event that
Customer's optical disk data storage system and/or remote printing
system is not fully operational 120 days after the Operational Date,
EDS may, at its option, install the Output Management System (OMS)
remote print system at one of Customer's locations which will replace
printing reports at the Data Center. Any reports which still need to
be printed at the Data Center (i.e. general ledger statement of
condition and general ledger posted transactions reports, etc., which
will be mutually agreed upon by Customer and EDS in advance) will, for
the charge listed in Schedule C, be available for pick-up at 7:00 a.m.
on the same Business Day as the other reports are delivered
electronically. The charge for installation of OMS is $1,500 and will
be paid by Customer upon completion of the installation process.
E - 1
SERVICE LEVEL STANDARDS
Beginning on the first day of the calendar month immediately following the
expiration of ninety (90) days after the Operational Date, EDS shall perform
Services in such a manner so as to meet or exceed the performance standards
described in this Schedule F (the "Performance Standards"). Compliance with the
Performance Standards will be determined on a monthly basis. EDS will keep
accurate records relating to its compliance with the Performance Standards and
provide to Customer on a quarterly basis a report or reports relating to such
compliance. For purposes hereof, a failure by EDS to meet a Performance Standard
during a calendar month, each evidenced by the report or reports provided by
EDS, shall be deemed to be an "Occurrence".
A.) PERFORMANCE STANDARDS
1.) 98% On-line Systems Availability
PERFORMANCE STANDARD: On-line mainframe Systems (programs BDS001, EIM001
and BDS010 only) are to be available at least 98% of the time during the
hours specified in Schedule A.
MEASUREMENT: On-line mainframe Systems availability will be calculated as
[(the total number of Available Hours (defined below) minus the "down"
hours which occur during the same calendar month) divided by the total
Available Hours] to determine the percentage of on-line mainframe Systems
availability. "Available Hours" are the total number of hours that the
on-line mainframe Systems are required to be available in a calendar month
as specified in Schedule A. A failure by EDS to meet or exceed 98% on-line
mainframe Systems availability during a calendar month will create an
Occurrence. Down-time related to Customer's local or wide area network will
not be calculated into this measurement.
2.) Daily Optical Downloads
PERFORMANCE STANDARD: Optical downloads for daily standard ITI reports will
be initiated by 8:00 a.m. on Business Days. Optical downloads for daily
SMART reports will be initiated by 1:00 p.m. on Business Days, provided the
SMART report request was received by EDS before 3:00 p.m. on the Business
Day before the SMART report was to be run by EDS.
MEASUREMENT: Missing any standard or SMART report optical download
deadline more than three times in a calendar month will create an
Occurrence. Optical deadlines missed due to unavailability of Customer
Systems will be excluded from this measurement.
3.) Month-end, Quarter-end and Year-end Optical Downloads
PERFORMANCE STANDARD: Optical downloads for month-end, quarter-end and
year-end standard ITI reports will be initiated by 8:00 a.m. on the second
Business Day after the month-end, quarter-end or year-end date. Optical
downloads for month-end, quarter-end and year-end SMART ITI reports will be
initiated by 1:00 p.m. on the second Business Day after the month-end,
quarter-end or year-end date. Month-end, quarter-end or year-end SMART
report requests must be received by EDS before 3:00 p.m. on the Business
Day before the SMART report was to be run by EDS.
MEASUREMENT: Missing a month-end, quarter-end, or year-end standard ITI
report or SMART ITI report optical download deadline will create an
Occurrence. Optical deadlines missed due to unavailability or Customer
Systems will be excluded from this measurement.
4.) Statement Printing
PERFORMANCE STANDARD: Printed statements will be available for Customer
pick-up by 7:00 a.m. on the second Business Day after the statement cycle
cut-off date.
F - 1
SCHEDULE F
SERVICE LEVEL STANDARDS
MEASUREMENT: Missing a non-month-end statement printing deadline more than
twice in a calendar month will create an Occurrence. Missing the month-end
statement printing deadline once in a calendar month will create an
Occurrence.
5.) Annual Audit Confirmation and Year-end Notice Printing
PERFORMANCE STANDARD: Annual audit confirmation notices will be printed
within two weeks of Customer request. Year-end (1099 and 1098) notices will
be printed within legally required time frames.
MEASUREMENT: Missing these deadlines once in a calendar year will create an
Occurrence. Year-end notice deadlines missed due to Customer requests or
situations related to Customer's decisions regarding year-end closing and
reporting will be excluded from this measurement.
6.) Relationship Manager Monthly On-site Visits
PERFORMANCE STANDARD: A relationship manager will be assigned to Customer
at all times. At Customer's request, the relationship manager will make
on-site visits to Customer's administrative office, such on-site visits not
to exceed one (1) per month. In the event that the relationship manager is
reassigned or for any other reason no longer available to act as
relationship manager, EDS must act promptly to provide an interim
relationship manager until such time as a replacement relationship manager
is assigned.
MEASUREMENT: Missing two (2) monthly visits in succession will constitute
an Occurrence.
B.) CERTAIN EXCEPTIONS
Notwithstanding anything contrary in this Agreement or the Schedules, EDS
will not be responsible for, and may exclude from the calculation of
compliance with the Performance Standards, any failure to meet the
Performance Standards if, during, and to the extent that such a failure is
related to or caused by (i) any matter constituting force majeure, as
provided in Section 8.3 of this Agreement, (ii) Customer's failure to
perform its obligations under this Agreement where such failure was the
proximate cause of the failure to meet the Performance Standards, (iii)
special production jobs, testing procedures or other services which are
given priority at the request of the Customer, (iv) any significant
increase in processing volumes or business resulting from the acquisition
or indirectly, of asset or stock of a financial institution by Customer,
whether by merger or otherwise, (in each case during a reasonable
transition period to be agreed upon by EDS and Customer in good faith), (v)
significant unforeseen increases in processing volumes or business or any
significant change in the nature or scope of Services provided under this
Agreement (in each case during a reasonable transition period to be agreed
upon by EDS and Customer in good faith), (vi) any significant change in the
manner in which Customer conducts its business (in each case during a
reasonable transition period to be agreed upon by EDS and Customer in good
faith).
C.) REMEDY FOR OCCURRENCES
In the event that three (3) Occurrences take place during any six (6) month
period with respect to the same Performance Standard, then for a period
of thirty (30) days after receipt by Customer of a report from EDS
reflecting the third Occurrence, Customer will have the right to terminate
this Agreement, through delivery of written notice to EDS; provided the
effective date of such termination will not be less than thirty (30) days
after receipt by EDS of such notice. Customer's right to terminate the
Agreement pursuant to this provision will constitute Customer's sole remedy
with respect to any Occurrences.
Notwithstanding the foregoing, in regards to quarter-end and year-end
optical downloads as specified in Section A (3) of this Schedule F, and in
regards to annual audit confirmation and year-end notice printing as
specified in Section A (5) of this Schedule F, in the event that three (3)
consecutive Occurrences take place with respect to the same Performance
Standard, then for a period of thirty (30) days after receipt by Customer
of a report from EDS reflecting the third consecutive Occurrence, Customer
will have the right to terminate
F-2
SCHEDULE F
SERVICE LEVEL STANDARDS
this Agreement, through delivery of written notice to EDS; provided the
effective date of such termination will not be less than thirty (30) days
after receipt by EDS of such notice. Customer's right to terminate the
Agreement pursuant to this provision will constitute Customer's sole remedy
with respect to any Occurrences.
D.) TERMINATION FOR INABILITY TO PROVIDE BASIC SERVICES
In the event that EDS is unable to provide all or substantially all of the
Basic Service to Customer for five Business Days as a result of EDS'
material default in its performance under this Agreement, then for a period
of thirty (30) days after the fifth Business Day, Customer will have the
right to terminate this Agreement through delivery of written notice to EDS
as of a date specified in such notice.
F-3
ADDENDUM
THIS ADDENDUM ("Addendum") to the AGREEMENT FOR INFORMATION TECHNOLOGY SERVICE
("Agreement") between Electronic Data Systems Corporation ("EDS") and American
Commercial Bank ("Customer"), dated of even date herewith, is between Customer
and EDS.
The parties agree to amend the Agreement as follows:
1. The first sentence of Section 2.1 of the Agreement is amended to read as
follows:
"This Agreement will begin on the Effective Date and, unless terminated
earlier under Sections 7.3, 7.4, 7.5, 7.6 or 9.5, will continue for a
period of seven years from the Operational Date (the "Initial Term.")
2. The first sentence of Section 3.2(d) is amended to read as follows:
"Correct any errors in customer files, so long as it is reasonably within
the capabilities of the Systems and the operating environment, that result
in errors in reports or other output where such errors (i) are due solely
to either malfunctions of EDS' equipment or the EDS Systems or errors of
EDS' operators, programmers or other personnel, and (ii) are called to EDS'
attention within the time frames specified in Section 4.3."
3. The last sentence of Section 4.3 is amended to read as follows:
"Customer will reject all incorrect reports or output within five Business
Days after receipt of daily reports or output, within ten Business Days
after receipt of annual, quarterly or monthly reports or output, and within
five Business Days after receipt of all other reports or output."
4. Section 5.1 (a) of the Agreement is amended to read as follows:
"For Basic Services, the charges listed in Section 1 of Schedule C."
5. The first sentence of Section 5.3 of the Agreement is amended to read as
follows:
"All charges under this Agreement will be due and payable within thirty
days of invoice date."
6. Section 5.4 of the Agreement is amended to read as follows:
"COST OF LIVING ADJUSTMENT. No more than once in any twelve (12) month
period, EDS may, at its option and by giving Customer written notice,
increase the charges for the Basic Services listed in Section I(a) of
Schedule A by a percentage not to exceed the percentage by which the CPI as
of that time is higher than the CPI as of (i) for the first adjustment, the
earlier of the Effective Date or the date of the last adjustment previously
made pursuant to any immediately prior agreement, if any, under which EDS
provided the same or similar Services to Customer; and (ii) thereafter, the
previous time that EDS adjusted its charges to Customer pursuant to this
Section. In no event will any such adjustment exceed four percent (4%).
These increased charges will remain in effect until EDS adjusts them again
pursuant to this Section."
7. A new sentence is added to the end of Section 6.2 of the Agreement:
"However, if the payment to EDS of any due and owing amount is reasonably
and in good faith disputed by Customer then EDS will, in accordance with
the provisions of this Section 6.2, return to Customer all of
1
Customer's information, data, and files so long as Customer (i) notifies
EDS upon termination that such payment is disputed, what amount is being
withheld from EDS and the reasons why that amount is disputed, and (ii)
within ten days of such notice, deposits all such amounts into an escrow
account, established in the name of and as the property of EDS and Customer
in a major national bank pursuant to an escrow agreement; such an escrow
agreement to provide that EDS will pay for the expenses associated with
such an escrow account, and for the escrowed funds and any interest such
escrowed funds may have borne to be disbursed to EDS or Company, as
applicable, only in accordance with the mutual agreement of the parties or
an arbitration decision binding upon both parties as provided for in
Section 7.2."
8. Section 7.5 of the Agreement is amended to read as follows:
"TERMINATION FOR CAUSE. If either party materially defaults in its
performance under this Agreement, except for non-payment of amounts due to
EDS or for failure of EDS to meet the Performance Standards as outlined in
Schedule F, and fails to promptly take reasonable action to substantially
cure such default within ninety days after receiving written notice
specifying the default or, for those defaults which cannot reasonably be
counted within ninety days, promptly commence curing such default and
thereafter proceed with all due diligence to substantially cure the
default, then the party not in default may by giving the defaulting party
at least thirty days prior written notice thereof, terminate this Agreement
as of a date specified in such notice."
9. The first sentence of Section 17 of the Agreement is amended to read as
follows:
"The parties acknowledge that upon termination of this Agreement for any
reason, including under Sections 7.3, 7.4, 7.5, or 7.6 (but excluding by
election by either party not to renew pursuant to Section 2.1 or
termination by Customer pursuant to Sections 7.5, 7.6, 8.3, 9.5 or
Section D of Schedule F), EDS will incur damages resulting from such
termination that will be difficult or impossible to ascertain."
10. The last sentence of Section 7.7(a) of the Agreement is amended to read as
follows:
"If the actual Termination Costs are greater or less than the amount of
EDS' invoice that is paid by Customer under the immediately preceding
sentence, then as soon as reasonably practicable, Customer will pay EDS or
EDS will refund to Customer, as the case may be, the difference between the
actual Termination Costs and the amount paid."
11. The last sentence of Section 7.7 (b) of the Agreement is amended to read as
follows:
"All amounts payable under this Section 7.7 will be invoiced and paid prior
to the effective date of such termination and prior to the release of any
test tapes or other data of Customer except in the event the amount due and
owing is reasonably and in good faith disputed by Customer. In such an
event, Customer will deposit such disputed amounts into an escrow account
in accordance with the provisions of Section 6.2."
12. The second, third and fourth sentences of Section 8.1 of the Agreement are
amended to read as follows:
"If EDS becomes liable to the Customer under this Agreement for any other
reason, then, except for damages arising from EDS' gross negligence or
willful misconduct, then the damages recoverable against EDS for all
events, acts, delays, or omissions will not exceed in the aggregate the
compensation payable to EDS pursuant to Section 5.1 of this Agreement for
the lesser of the months that have elapsed since the Operational Date or
the three months ending with the latest month in which occurred the events,
acts, delays or omissions for which damages are claimed. In no event will
the measure of damages include any amounts for indirect, consequential or
punitive damages of any party, including third parties, or damages which
could have been avoided had the output provided by EDS been verified by
Customer before use, so long as the output provided by EDS had been capable
of being verified within the time frames specified in
2
Section 4.3. Customer may not assert any cause of action against EDS of
which the Customer knew or should have known more than three years prior to
such assertion."
13. Section 8.3 of the Agreement is amended to read as follows:
"FORCE MAJEURE. Each party will be excused from performance under this
Agreement, except for any payment obligations for Services which have been
or are being provided, for any period and to the extent that it is
prevented from performing, in whole or in part, as a result of delays
caused by the other party or any act of God, war, civil disturbance, court
order, labor dispute, third party nonperformance (excluding the actions or
omissions of a party's agents), or other cause beyond its reasonable
control, including failures, fluctuations or nonavailability of electrical
power, heat, light, air conditioning, or telecommunications equipment. In
the case of Customer's nonperformance, such nonperformance will not be a
default or a ground for termination as long as reasonable means are taken
to expeditiously remedy the problem causing such nonperformance. In the
case of EDS' nonperformance, such nonperformance will not be a default or a
ground for termination unless EDS is unable to provide all or substantially
all of the Basic Services to Customer for five Business Days. In the event
that EDS is unable to provide all or substantially all of the Basic
Services to Customer for five Business Days then, for a period of thirty
Business Days after the fifth Business Day, Customer will have the right to
terminate this Agreement, through delivery of written notice to EDS, as of
a date specified in such notice."
14. Section 8.4 of the Agreement is amended to read as follows:
"PERSONAL INJURY AND PERSONAL PROPERTY INDEMNITY. Each party will
indemnify and defend the other party and will hold the other party harmless
(such indemnifying party, the "Indemnitor") from and against any and all
claims, actions, damages, liabilities, costs and expenses (including
without limitation reasonable attorneys' fees and expenses) relating to or
arising out of the death or bodily injury of any agent, employee, customer,
business invitee or business visitor of the indemnitee or the damage, loss
or destruction of any property of the indemnitee caused by the negligent
act or omission or the willful misconduct of the Indemnitor."
15. Section 9.1 of the Agreement is amended to read as follows:
"BINDING NATURE AND ASSIGNMENT. This Agreement will be binding on the
parties and their respective successors and assigns. Neither party may
assign this Agreement unless it obtains the prior written consent of the
other party, which will not be unreasonably withheld; provided that EDS may
assign this Agreement to its affiliates or in connection with the sale of
all or substantially all of EDS' business in one or a series of related
transactions."
16. The second sentence of Section 9.5 of the Agreement is amended to read as
follows:
"If EDS gives Customer notice of a modification pursuant to this Section,
Customer may, by giving EDS written notice at least one month prior to the
Modification Date, terminate this Agreement as of such Modification Date
or at a specified later date."
17. Section 9.7 of the Agreement is amended to read as follows:
"MEDIA RELEASES. All media releases, public announcements and public
disclosures by either party or its employees or agents relating to this
Agreement or the subject matter of this Agreement, including without
limitation promotional or marketing material, but not including any
announcement intended solely for internal distribution or any disclosure
required by legal, accounting or regulatory requirements beyond the
reasonable control of Customer, will be coordinated with and approved by
the other party prior to release."
3
18. Except as amended by this Addendum will be and remain in full force and
effect in accordance with its terms. Capitalized terms used in this
Addendum will be as defined in the Agreement unless otherwise expressly
defined in this Addendum
19. Three (3) original copies of this Addendum will be executed and submitted
to EDS by Customer. This Addendum will become effective when EDS executes
this Addendum. EDS will return one of the executed copies to Customer.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date set
forth above.
AMERICAN COMMERCIAL BANK ELECTRONIC DATA SYSTEMS
CORPORATION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------- -------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------- -----------------------------
Date: Oct. 29, 1996 Date: Oct. 31, 1996
----------------------------- -----------------------------
4
SCHEDULE A
BASIC SERVICES
ATTACHMENT 1
TO
SCHEDULE A
NOTICE OF DATA PROCESSING OPERATIONAL DATE
MAY 9, 1997
American Commercial Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Agreement for Information Technology Services dated October 29, 1996, (the
"Agreement") between American Commercial Bank ("Customer") and Electronic
Data Systems("EDS").
Gentlemen:
In accordance with the above-referenced Agreement, please be advised that
the Operational Date for purposes of the Agreement shall be May 5, 1997.
Sincerely,
ELECTRONIC DATA SYSTEMS CORPORATION
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Relationship Manager
AMENDMENT NUMBER THREE
TO AGREEMENT FOR INFORMATION TECHNOLOGY
SERVICES BETWEEN
ELECTRONIC DATA SYSTEMS CORPORATION
AND AMERICAN COMMERCIAL BANK
THIS AMENDMENT NUMBER THREE (this "Amendment") is between Electronic Data
Systems Corporation ("EDS") and American Commercial Bank ("Customer"), and is in
amendment of that certain Agreement for Information Technology Services between
EDS and Customer dated as October 31, 1996 (the "Agreement").
For and in consideration of the mutual agreements of the parties herein
contained and other good and sufficient consideration the receipt of which is
hereby acknowledged, EDS and Customer agree as follows:
1. Pursuant to Section 3.1(d) of the Agreement, the following Additional
Service has been requested by Customer and will be provided by EDS. EDS
will provide such Additional Service in accordance with this Amendment and
the Agreement and such Additional Service will be deemed an Additional
Service under the Agreement for all purposes.
(a) EDS will provide Customer with the ITI Retirement Reporting Module
(RRM) in conjunction with Customer's current suite of modules pursuant
to the Agreement.
2. For the provision by EDS of the Additional Service described in Section 1
of this Amendment, Customer will pay EDS the amounts set forth below:
Additional Service Service Fee
------------------ -----------
Retirement Reporting Module (RRM) $.01 per account record
monthly minimum charge of $175.00
A one time set up fee $1,500.00.
Training at Customer site $850.00 per day plus any travel
and travel-related expenses as
provided for in the Agreement
Such amounts will be due and payable in accordance with the terms of the
Agreement.
3. Except as expressly amended by this Amendment, the Agreement will be and
remain in full force and effect in accordance with its terms. Capitalized
terms used in this Amendment will be as defined in the Agreement unless
otherwise expressly defined in this Amendment.
4. Three (3) original copies of this Amendment will be executed and submitted
to EDS by Customer. This Amendment will become effective as of the date
set forth below when EDS executes this Amendment. EDS will return one of
the executed copies to Customer.
IN WITNESS WHEREOF, the parties have executed this Amendment as of March 25,
1998.
ELECTRONIC DATA SYSTEMS AMERICAN COMMERCIAL
CORPORATION BANK
By: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Name: ▇▇▇▇▇ ▇▇▇ ▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Western Regional Manager Title: President
Date: Date: 4-3-98
------------------------------ -----------------------------
SCHEDULE G
Item Processing Services
I. ITEM PROCESSING SERVICES
EDS shall provide the following Basic Services to Customer:
a.) PROOF OF DEPOSIT ENCODING
EDS will receive all Proof Items processed at Customer's locations in
accordance with mutually agreed upon cut-off times. EDS will proof and
endorse each Item and encode the dollar amount of each Item. Proof errors
detected by EDS will be corrected and documentation supporting corrections
will be sent to Customer the following Business Day via courier.
Teller balancing tapes and tapes accompanying deposits will be included in
the daily proof work sent to EDS by Customer, and EDS will return said
balancing tapes to Customer upon a mutually agreed upon schedule.
All Proof Items delivered to EDS by the mutually agreed upon delivery
deadlines will be processed to meet Customer's outgoing cash letter
deadline(s). EDS will make best reasonable efforts to handle Customer's
work received after the required deadline(s).
The parties are in agreement that the Proof of Deposit Encoding Services,
as described in this Section I(a) of this Schedule G, will not commence
until a mutually agreeable date has been selected in the first or second
calendar quarter of 1998.
b.) PROOF OF DEPOSIT CAPTURE
All Proof of Deposit Items will be captured, filmed front and back and
assigned a unique batch and sequence number. All Item rejects will be
corrected on-line. Proof of Deposit capture files will be uploaded each
Business Day for nightly posting on the EDS Systems.
c.) MICR REJECT REPAIR
EDS will complete or correct the electronic information record from the
MICR line on-line.
d.) FINE SORTING INTO ACCOUNT NUMBER ORDER
All on-us Items and general ledger tickets will be sorted into account
number order and made available for pick-up by Customer's courier by 7:00
a.m. the first Business Day after processing.
e.) COURIER BAG STORAGE
EDS will hold courier bags overnight at the Data Center for Customer. EDS'
only responsibility will be to remove the bag containing Items from the
courier bag for further processing. Courier will pick-up courier bags the
following Business Day.
II. ITEM PROCESSING SERVICES PRICING
Service Description Unit Price
------------------- ----------
Proof of Deposit Encoding $0.0250 per Item
Proof of Deposit Capture $0.0186 per Item
MICR Reject Repair - < 1% of Daily Volume $ No Charge
MICR Reject Repair - > 1% of Daily Volume $0.1500 per Item
Fine Sorting into Account Number Order $0.0138 per Item
G - 1
ADDENDUM
THIS ADDENDUM ("Addendum") to that certain Agreement for Information Technology
Services ("Agreement") between ELECTRONIC DATA SYSTEMS CORPORATION ("EDS") and
American Commercial Bank ("Customer"), dated as of October 31, 1996, is made and
entered into by and between Customer and EDS.
The parties agree to amend the Agreement as follows:
1 Section 1.1(c) of the Agreement is amended to read as follows:
"Basic Services" are the Services listed in Schedule A and the Item
Processing Services listed in Schedule G.
2. Section 1.1(d) of the Agreement is amended to read as follows:
"Business Day" is Monday through Friday during which Customer conducts
its business operations and which is not a holiday of the Federal
Reserve Bank.
3. New Sections 1.1(t) and 1.1(u) are added to the Agreement to read as
follows:
(t) "Item" shall mean a MICR document on which is recorded information
evidencing a debit or credit.
(u) "Item Processing Services" are the Services described in Schedule G.
(v) "MICR" is the magnetic ink character recognition that is encoded on
Items for processing.
(w) "MICR Reject" shall mean Items captured that reject due to poor or
missing MICR encoding which will be corrected on-line by EDS for same
Business Day processing.
(x) "Proof Item" shall mean a document received by EDS to be MICR encoded
with the dollar amount.
(v) "Proof of Deposit" shall mean the MICR encoding of the dollar amount
of each Item and balancing the debits to the credits.
4. New Section 3.1(e) is added to the Agreement to read as follows:
On a mutually agreeable schedule EDS will provide those services and
instructions ("Item Processing Conversion Services") reasonably required
for Customer to convert to and use the EDS Systems and the Item Processing
Services. Customer will cooperate in the conversion effort and timely
provide whatever information, data, clerical and office support, management
decisions, approvals and signoffs that EDS reasonably requires. Customer
will cooperate with EDS in scheduling training in conjunction with
Customer's conversion to the EDS Systems.
5. Section 3.2 of the Agreement does not apply to Item Processing Services
provided by EDS.
6. Section 3.4 of the Agreement does not apply to EDS Systems used to provide
Item Processing Services.
Page 1
7. A new Section 3.7 is added to the Agreement to read as follows:
GENERAL TERMS RELATING TO ITEM PROCESSING SERVICES.
(a) With respect to Item Processing Services, EDS will be
responsible for the Items from the time that such Items are received
by EDS at the Data Center until the Items are released for pickup at
the Data Center to couriers; provided that EDS' liability for the
destruction or disappearance of Items will be limited to cases where
the destruction or disappearance is due entirely to the negligence or
willful misconduct of EDS and, if so, EDS' sole obligation is to
reconstruct the Items from microfilm created by Customer.
(b) Provide for Customer's use one copy of EDS' standard user
documentation and one copy of any revisions describing the preparation
of input for, and use of, output from the EDS Systems. Such
documentation will address the reports provided under this Agreement.
Notwithstanding anything in this Agreement to the contrary, Customer
may duplicate or copy the user documentation and revisions, so long as
it is done (i) for Customer's internal use only in connection with the
Services provided pursuant to this Agreement and (ii) in accordance
with the applicable provisions of Section 6.3.
(c) Establish, modify or substitute from time to time any
Equipment, processing priorities, programs, or procedures used in the
operation of the EDS Systems or the provision of the Item Processing
Services that EDS reasonably deems necessary, and notify Customer of
any such changes that will affect Customer's operations. EDS shall not
make any such establishment, modification, or substitution which would
materially and adversely affect Customer's operations without
Customer's prior written approval, which approval shall not be
unreasonably withheld or delayed: provided, however that EDS shall
have the right without approval of Customer to install and implement
updates and releases pursuant to this Section 3.7(c). In the event
EDS installs and implements an update and/or release pursuant to this
Section 3.7(c) or 3.2(e) without Customer's approval, Customer
expressly retains the right to dispute such installation and
implementation in accordance with the provisions of Section 7.2 of the
Agreement. Notwithstanding the above, however, if a third party vendor
of any EDS Systems requires all users to upgrade such System due to
the vendor's decision to stop maintaining the version of such System
provided under this Agreement, then EDS may charge Customer for any
additional expenses reasonably incurred by EDS for such upgrade,
subject to the prior written consent of Customer to such additional
expenses.
8. A new Section 3.8 is added to the Agreement to read as follows:
REGULATORY COMPLIANCE RELATED TO ITEM PROCESSING SERVICES. If either
EDS or Customer becomes aware of any changes or proposed changes to any
statutes, regulations or rules applicable to the Item Processing
Services, that party will promptly notify the other of the change or
proposed change, and the parties will cooperate in analyzing the impact,
if any, that the change or proposed change will have on the obligations
of the parties under this Agreement. If any such change requires EDS to
modify any Item Processing Services, EDS will comply with such change
and Customer will reimburse EDS for (a) any additional costs thereby
incurred by EDS that are specific to Customer (such as the cost of
retaining Customer's data for a longer period of time), and (b)
Customer's pro rata share (based on such method of proration as EDS in
good faith determines to be appropriate) of any additional costs thereby
incurred by EDS that are not specific to Customer (such as the cost of
modifications to the EDS
Page 2
Systems that apply to Customer and to other EDS customers for item
processing services) and that are in excess of the costs that EDS would
customarily absorb as part of its normal services to its customers for item
processing services, as reasonably determined by EDS.
9. A new Section 3.9 is added to the Agreement to read as follows:
YEAR 2000. With respect to Year 2000, as part of the Services, EDS will
(a) with respect to EDS Systems which are proprietary to EDS, provide
those improvements and enhancements to such Systems so that they will
maintain the functionality existing as of the as part of the Effective
Date taking into account any processing, accepting, calculating, writing
and outputting of times or dates, or both, whether before, on or after
12:00 a.m. January 1, 2000, and any time periods determined or to be
determined based on any such times or dates, or both, and (b) with
respect to EDS Systems which are not proprietary to EDS, use all
reasonable efforts to obtain from the third party vendor thereof, those
improvements and enhancements to such Systems so that they will maintain
the functionality existing as of the Effective Date taking into account
any processing, accepting, calculating, writing and outputting of times
or dates, or both, whether before, on or after 12:00 a.m. January 1,
2000, and any time periods determined or to be determined based on any
such times or dates, or both. Customer acknowledges and agrees that EDS
will not be responsible for (i) changes, modifications, updates or
enhancements to, and any inaccuracies, delays, interruptions or errors
caused by interfaces between the EDS Systems and any software or systems
which EDS does not operate under this Agreement, (ii) any inaccuracies,
delays, interruptions or errors occurring as a result of incorrect data
or data from other systems, software, hardware, processes or third
parties provided in a format that is inconsistent with the format and
protocols established for EDS Systems including date data in two digit
format, even if such data is required for the operation of the EDS
proprietary software or systems, and (iii) any inaccuracies, delays,
interruptions or errors occurring as a result of incorrect data or data
from telecommunication systems.
10. Section 5.1(a) of the Agreement is amended to read as follows:
For Basic Services the monthly charges listed in Section I of Schedule C
and the monthly charges for Item Processing Services listed in Schedule G.
11. Section 5.2(a) of the Agreement is amended to read as follows:
All costs incurred by EDS (i) in mailing reports or other output to
Customer, its customers, or third parties, and (ii) in transporting,
shipping, or delivering Items, reports, output, or input between the Data
Center and Customer's locations.
12. A new Section 5.5 is added to the Agreement to read as follows:
CUSTOMER RESPONSIBILITIES RELATED TO ITEM PROCESSING SERVICES. In order
that EDS may perform its obligations to provide Item Processing Services,
Customer shall perform the actions provided in Schedule G.
13. The first sentence of Section 8.1 of the Agreement is amended to read as
follows:
Section 3.2(d) sets forth Customer's exclusive remedies for errors in
reports or other output provided by EDS under this Agreement and Section
3.7(a) sets forth Customer's exclusive remedies for the destruction or
disappearance of Items that occurs while such Items are being held at the
Data Center.
Page 3
14. New sixth and seventh sentences added to Section 8.1 to read as follows:
Customer expressly waives and releases any claim that it may otherwise
have against EDS in excess of such amounts provided for pursuant to this
Section. By releasing and discharging EDS from such claims both known and
unknown, Customer expressly waives any rights it may have had under
California Civil Code Section 1542 which provides as follows: "A general
release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which
if known by him must have materially affected his settlement with the
debtor."
15. A new Schedule G, attached, is added to the Agreement.
16. Except as amended by this Addendum, the Agreement will be and remain in
full force and effect in accordance with its terms. Capitalized terms, used
in this Addendum will be as defined in the Agreement unless otherwise
expressly defined in this Addendum.
17. Three (3) original copies of this Addendum will be executed and submitted
to EDS by Customer. This Addendum will become effective when EDS executes
this Addendum. EDS will return one of the executed copies to Customer.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date set
forth above.
AMERICAN COMMERCIAL BANK ELECTRONIC DATA SYSTEMS
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By:
-------------------------------- --------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name:
------------------------------ ------------------------------
Date: 12-19-97 Date:
------------------------------ ------------------------------
Page 4
ITEM PROCESSING SERVICES
Service Description Unit Price
------------------- ----------
Microfiche - Originals $1.7000 per plate
Microfiche - Duplicates $0.4000 per plate
Courier Bag Storage $ No Charge
III. CUSTOMER RESPONSIBILITIES
a.) Customer or Customer's courier will deliver Proof of Deposit Items to
EDS each Business Day in accordance with mutually agreed upon cut-off
times. EDS will make reasonable efforts to encode and capture Items
delivered to EDS after the arrival deadline for same day posting.
Customer will be invoiced for any additional costs reasonably incurred
by EDS for processing work received after the deadlines. Items not
processed by EDS will be held at EDS awaiting Customer's instructions.
b.) Customer assumes full responsibility for the accuracy, completeness
and authenticity of all Items furnished to EDS, and EDS shall be
entitled to rely thereon and shall have no obligation or
responsibility to audit, check or verify the Items.
c.) Customer will microfilm all Items prior to delivery to EDS.
d.) Customer will be responsible for the selection of couriers and will
pay for such courier services. If EDS is billed for Customer's courier
service, EDS will re-▇▇▇▇ Customer without ▇▇▇▇-up.
IV. SERVICE LEVEL STANDARDS
Customer and EDS will develop and implement mutually agreed upon Performance
Standards for Item Processing Services on a mutually agreed upon schedule after
the conversion date (December 22, 1997).
G-2