Exhibit 10.24
PHOENIX INTERNATIONAL LTD., INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
APPLICATION PROCESSING AGREEMENT
--------------------------------------------------------------------------------
Name of Customer: Effective Date
Two River Community Bank (In Organization) November 17, 1999
--------------------------------------------------------------------------------
Type of entity: State of formation:
Bank FDIC New Jersey
--------------------------------------------------------------------------------
Mailing Address: Business Address (if different from
mailing address):
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
City, State, Postal Code: City, State, Postal Code:
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
Phone Number: Fax Number:
(▇▇▇)▇▇▇-▇▇▇▇ (▇▇▇)▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Phoenix International Ltd., Inc. ("Phoenix") has developed a retail banking
system, which it uses to provide bank and application processing services to its
customers. The party identified as Customer above ("Customer") wishes to obtain
such services from Phoenix. In consideration of the obligations of the and
agreements of the parties as set forth below, the parties hereby agree as
follows:
1. Definitions
1.1. Client Software means the object code of the client resident
portions of the Phoenix System which will reside at Customer's
premises for input, review, use, and modification of Customer's
data.
1.2. Documentation means the user documentation relating to the Phoenix
System provided to Customer by or on behalf of Phoenix.
1.3. Material means any documents, magnetic media, equipment, negotiable
items, or other information or material in any related to the
services provided hereunder.
1.4. Phoenix System means the hardware and Phoenix software used by
Phoenix to provide the Application processing Service hereunder.
1.5. Processing Services means the bank and application processing and
other services to be provided by Phoenix hereunder and identified on
Exhibit A annexed hereto.
1.6. Related Expenses means reasonable travel and other out-of-pocket
expenses incurred by Phoenix in the performance of its obligations
hereunder, including (without limitation) airfare, travel costs,
lodging costs, and meals; shipping charges, courier and delivery
charges; tape, cartridge, CD and diskette cost; voice and data
telecommunications expenses, and the cost of forms, supplies,
microfiche, and courier services. To the extent reasonably possible,
Phoenix will obtain the approval of Customer prior to incurring
substantial Related Expenses, and Customer will not unreasonably
withhold such approval. Phoenix travel expenses shall be in
conformance with the Phoenix Travel and Entertainment Policy as in
effect from time to time, a copy of which shall be provided to
Customer upon request.
2. Services
2.1. Application processing. Phoenix agrees to furnish to Customer and
Customer agrees to obtain the Processing Services as specified on
Exhibit A. Customer agrees that during the term of this agreement
Phoenix will be the exclusive provider of such Processing Services.
Customer may obtain additional products and services offered by
Phoenix at Phoenix's then current prices for such services by
amending Exhibit A.
2.2. Installation and Training. Phoenix will provide installation and
training services under the conditions and for the fees specified in
Exhibit D annexed hereto. Installation services are provided
pursuant to a written installation plan, executed by Phoenix and
Customer, and incorporated by reference into this Agreement within
30 days after the Effective Date as herein after defined. The
Installation Plan shall be based upon the allocation of
responsibilities contained in Exhibit B.
2.3. Network Support. Phoenix will also provide Network Support Services
consisting of communication line monitoring and support personnel to
discover, diagnose, repair, or report line problems to the
appropriate telecommunications company. This service is included in
the fee for telecommunications services also listed in Exhibit C.
2.4. Communications Management Services. Customer may obtain
communication management services from Phoenix to assist with the
acquisition or installation of communications hardware and
equipment, or any move of Customer's facilities, at the cost and
fees set forth in Exhibit C.
2.5. Changes to Services. Phoenix reserves the right to make changes to
services including, but not limited to, operating procedures,
security procedures, the type of equipment resident at, and the
location of the data processing center, provided that Phoenix shall
not delete services or make changes which would cause a material
increase in Customer's cost of doing business without Customer's
prior approval. Phoenix will provide Customer with reasonable prior
written notice of changes which will materially affect Customer's
procedures or reporting.
2
2.6. Data Retention, Phoenix shall retain data for the periods set forth
in Exhibit F annexed hereto and may destroy all data thereafter.
3. Term.
This Agreement shall commence on the date of the agreement ("the
Effective Date") and shall continue for 60 months from the first day
of live processing of Customer's accounts (the "Installation Date"),
or such other Date as is mutually agreed upon by Phoenix and
Customer. Upon expiration, the Agreement will automatically renew
for successive terms of 24 months unless either party provides
written notice to the other of its intent not to renew for another
term at least 180 days prior to expiration of the then current term.
Notwithstanding the foregoing, the effective date shall not occur
unless and until Customer obtains approval from the Federal Deposit
Insurance Corporation and the applicable New Jersey State Banking
authorities for the operation of a bank. In the event such approvals
are not obtained on or before April 1, 2000, either Customer or
Phoenix may cancel this agreement with no liability to the other
except for any direct costs or expenses incurred by Phoenix in
connection with this Agreement prior to cancellation.
4. Price and Payment
4.1. Fees. Fees for the Processing Services, implementation, and training
are set forth in Exhibit B, including, where applicable, minimum
monthly charges.
4.2. Payment. Customer shall make all payments due to Phoenix by check or
wire transfer within 30 days after invoice. Estimated base charges
and actual charges shall be invoiced monthly in arrears on the first
of each month. Late payments will accrue interest at the rate of 1
1/2 % per month.
4.3. Fee Adjustment. Phoenix may adjust the Services Fees listed on
Exhibit B once per year after the first anniversary of the
Installation Date upon 30 days written notice to Customer. Each
change shall be limited to the lesser of 8% or the change in the
U.S. Department of Labor, Consumer Price Index for Urban Wage
Earners and Clerical Workers, All Cities, (1982=100) for the
preceding 12 month period. Phoenix may increase fees in excess of
this limit when it implements major system enhancements which are
provided to comply with changes in government regulations, provided
that no such change shall exceed 15%.
4.4. Taxes. Customer shall be responsible for all taxes in connection
with the provision of products or services hereunder, including but
not limited to all sales, use, withholding, and excise taxes. In no
event shall Customer be responsible for taxes based upon the net
income of Phoenix.
3
4.5. Related Expenses. Customer agrees to pay all Related Expenses
incurred by Phoenix in the provision of services hereunder. All fees
for communications services are based upon services rendered from
Phoenix's premises. Off-premises services and support will be
provided upon Customer's request on an as available basis at
Phoenix's then current charges for time and materials, plus Related
Expenses. These charges will be invoiced monthly.
5. Customer Obligations
5.1. Data. Customer shall provide all data for input to the Phoenix
System for processing in a format and manner specified by Phoenix.
Customer shall determine and be responsible for the authenticity and
accuracy of all information and data submitted to Phoenix, and for
confirming the accuracy of data received from Phoenix. Customer
shall review all reports furnished by Phoenix within 15 days for
accuracy and shall work with Phoenix to reconcile any out of balance
conditions. If data is to be transmitted from multiple sources,
Phoenix will not begin processing until all data has been received.
Phoenix shall not be responsible for transmission or communication
errors, or other problems with transmission of data not associated
with the Phoenix System. The Customer is also responsible for
retention and backup of all data and processing records provided by
Phoenix.
5.2. Network and Equipment. Customer will provide at its own expense all
equipment, computer software, network equipment, communication
lines, and interface devices required to use the Client Software and
access the Phoenix System except where Phoenix has been retained to
acquire equipment for this purpose. All such equipment shall comply
with Phoenix's hardware and network standards guide.
5.3. Customer Contact. Customer will designate and maintain throughout
the Term of this Agreement a relationship contact manager to act as
liaison between the Customer and Phoenix. All operational
communications between Phoenix and the Customer shall be conducted
to and from the liaison.
5.4. Use of Phoenix Banking System. Customer agrees to comply with any
operating instructions on the use of the Phoenix Banking System
provided by Phoenix.
5.5. Customer Personnel. Customer shall designate appropriate Customer
personnel for training in the use of the Phoenix Banking System.
5.6. Access. Customer shall supply Phoenix with reasonable access to the
Customer site during normal business hours for installation and
shall cooperate with Phoenix personnel in the installation and
implementation of the services.
5.7. Connections. The Customer is responsible for taking all necessary
legal steps for the interconnection of the Customer's transmissions
with third party carriers. The Customer is responsible for securing
all licenses, permits, right of ways,
4
and other arrangements necessary for such interconnection and
transmission and receipt of Customer's Material.
5.8. Delivery of Material. The Customer shall be responsible for
transporting the Material to and from Phoenix, at Customer's sole
cost and expense. All insurance with respect to the transportation
of the Material shall be the sole responsibility of Customer. Risk
of loss of the Material to and from Phoenix shall be borne by the
Customer.
5.9. Business Recovery. Phoenix's business recovery plan is designed to
minimize, but not eliminate, risks associated with a disaster
affecting the Phoenix data center supplying the Processing Services.
Phoenix does not warrant that service will be uninterrupted or error
free in the event of a disaster. Customer is responsible for
adopting a business recovery plan relating to disasters affecting
Customer's facilities and for securing business interruption
insurance or other insurance necessary for Customer's protection.
Phoenix shall maintain adequate backup procedures including storage
of duplicate record files as necessary to reproduce Customer's
records and data consistent with the provisions of section 2.6., as
defined in Exhibit E. In the event of a service disruption due to
reasons beyond Phoenix's control, Phoenix shall use diligent efforts
to mitigate the effects of such an occurrence.
6. Service Performance Standards; System Availability
6.1. Hours of Operation. Phoenix shall provide that the Phoenix System
and the Application processing Services are available for daily
processing tasks 98% of the time each month during regular hours of
operation as set forth below. Phoenix will also be responsible for
providing that the Phoenix System has a reasonable end user response
time, with an average response time of three to five seconds for
routine transactions, defined as basic deposit, withdrawal, and
single inquiry transactions.
Hours of Operation, Eastern Standard Time
Monday 7:00 A.M. - 8:00 P.M.
Tuesday 7:00 A.M. - 8:00 P.M.
Wednesday 7:00 A.M. - 8:00 P.M.
Thursday 7:00 A.M. - 8:00 P.M.
Friday 7:00 A.M. - 8:00 P.M.
Saturday 7:00 A.M. - 3:00 P.M.
Sunday unattended
The System will not be attended on Sundays or on the holidays
observed by the Federal Reserve Bank, including the following:
New Year's Day President's Birthday
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Day Thanksgiving Day
5
Memorial Day Christmas Day
Independence Day Columbus Day
Labor Day Veterans' Day
However, on President Day, Columbus Day and Veterans Day Customer
will have access to Phoenix personnel.
6.2 Extension of Hours. Phoenix will use its best effort to accommodate
requests for exceptions or extensions of the hours of operation.
These hours may be modified based on dependencies with reporting
files required to be sent to other servicing organizations.
6.3 Exclusions. Notwithstanding anything to the contrary contained
herein, Phoenix shall not be responsible for (i) telecommunications
failures, (ii) service interruptions beyond Phoenix's control, (iii)
delay or failure of any third party courier or delivery service,
(iv) failure of any third party vendor to deliver information,
files, magnetic media, products, support or services, or other
materials required for Phoenix to provide service hereunder.
7. Problem Reporting and Resolution.
7.1. Problem Reporting. Customer is responsible for reporting problems to
Phoenix's customer service or operations staff at the contact
numbers or addresses provided by Phoenix from time to time.
7.2. Problem Response. Phoenix shall respond to each reported problem
promptly based on the severity of the problem and its effect on
Customer's operations. Phoenix shall use reasonable commercial
efforts to either resolve each problem or provide Customer with
information to allow Customer's personnel to address the problem. In
the event the resolution of a reported problem which materially
impacts Customer's operations will carry-over to the next business
day, Phoenix will provide Customer with a status report for the
problem and an estimate of the resolution time and course of action,
if possible. Phoenix will provide Customer with a daily report on
the status of unresolved issues.
7.3. Service Performance and Standards Remedy. If Phoenix or the System
fails to meet the percentage up-time and performance standards
specified above and such failure is not the result in whole or in
part, of a Customer error or omission, any act, failure or omission
of any third party, or any other circumstance beyond Phoenix's
reasonable control, Customer shall notify Phoenix immediately in
writing specifying the performance standard(s) not met and the
nature of the deficiency. Within 15 days of receipt of such notice,
Phoenix shall establish and provide Customer in writing with an
action plan to meet the service performance standard(s). Upon
expiration of such 15-day period, Phoenix shall have 30 days to
bring its performance to the percentage/standard specified in the
relevant service performance standard. Phoenix shall report the
nature and status of its efforts at the end of such period.
6
Should Phoenix's performance remain below the applicable standard
after such 30-day period, Phoenix shall have an additional 60 days
to correct the situation and bring the affected performance up to
the standard. During this period, Customer will be provided with a
15% reduction in the monthly Phoenix invoice for each month that the
performance standard(s) remain deficient.
Should Phoenix's performance remain below the service standards
following all such periods, Customer may elect to either (i) provide
Phoenix with additional time to improve the affected standard,
during which time Customer will continue to receive a 15% reduction
in the monthly Phoenix invoice, or (ii) terminate the service
agreement by giving Phoenix written notice of termination. Customer
may also terminate the service agreement if Phoenix's performance
remains below the relevant service performance standard for more
than three monthly periods in any 12 month period by giving Phoenix
written notice of termination. Such termination shall be without
penalty or any charge to Customer other than charges for service
fees incurred prior to the effective date of termination. This right
of termination shall be Customer's sole and exclusive remedy for
Phoenix's failure to meet any service performance standard and after
such termination neither party shall have any liability or
obligation to the other exception pursuant to any specified
obligations that survive termination under the terms of the
agreement and any addenda hereto.
8. Software License.
8.1. License. Subject to the restrictions and limitations of this
Agreement and to payment of the fees set forth herein, Phoenix
hereby grants to Customer a non-exclusive, non-transferable license
during the term of this Agreement within the United States to:
(a) Use the Client Software on Customer's own network for its own
internal data entry and processing needs but only at the
headquarters and branch marketing locations;
(b) make a reasonable number of additional copies of the Client
Software for testing, backup, and archival purposes in support
of its ordinary use of the Client Software;
(c) use the Documentation in support of Customer's Use of the
Client Software;
(d) make a reasonable number of additional copies of the
Documentation or portions thereof as required to support the
Use of the Client Software;
(e) use the Client Software for the benefit of its Affiliates,
provided that the appropriate license fees have been paid for
such Affiliates, and provided that no more than the number of
servers which have been authorized hereunder are utilized.
7
8.2. Restrictions. Customer may use the Client Software for its own
internal data processing needs. Customer may not, without the prior
written consent of Phoenix:
(a) translate, reverse engineer, de-compile, interpret or
disassemble the Client Software;
(b) transfer, distribute, sell, lease, or assign the Client
Software or Documentation;
(c) or make any changes to the Client Software.
8.3. Title to Intellectual Property. The Phoenix System and Documentation
are (i) copyrighted works protected by copyright laws, treaties, and
conventions of the United States and (ii) contain trade secrets and
Confidential Information of Phoenix protected under applicable law.
Phoenix retains all right, title, and interest in and to the Phoenix
System and Documentation, and all copyright, trade secret, patent
and other intellectual property rights contained therein, subject
only to the limited license granted to Customer above. Phoenix shall
also exclusively own all changes, modifications, and additions to
the to the Phoenix System and Documentation, whether made by or on
behalf of Phoenix, Customer, or their employees, agents or
otherwise, provided, however, that Customer shall own any additions
to the Software which are not based on the Software or other Phoenix
code and which are produced by Customer without significant
assistance from Phoenix. To the extent that changes, including all
associated intellectual property rights, are not owned in their
entirety by Phoenix immediately upon their creation, Customer agrees
to assign (and hereby automatically assigns) all right, title and
interest therein to Phoenix, without any requirement of
consideration or further documentation. Customer agrees to take such
further action and execute such further documentation as Phoenix may
reasonably request to give effect to this Section.
8.4. Documentation. Phoenix shall provide Documentation associated with
the software as produced and provided by Phoenix and/or Phoenix,
including, but not limited to, the Phoenix Software Documentation
which contains program descriptions, reference materials,
operational instructions, etc.
8.5. Modification of Software. Customer may not materially modify,
change, or alter the Phoenix System or data base structure without
Phoenix's prior written consent. In the event Customer makes any
modification of the Phoenix System or data base structure, Phoenix
shall have no liability to Customer or any third party as a result
therefrom and the performance standards otherwise provided for
herein shall not apply.
8.6 Protection of Proprietary Rights
a) Customer acknowledges that the Phoenix System and Documentation
are proprietary to Phoenix. Customer further acknowledges that the
Client Software,
8
including all techniques, algorithms and processes contained therein
or any modification thereof or extraction therefrom, contains
confidential, valuable trade secrets of Phoenix and that Customer
will safeguard such trade secrets to the fullest extent possible.
Without limiting the generality of the foregoing, Customer also
agrees not to disclose all or part of the Phoenix Software to any
person or party other than Customer's authorized personnel as
necessary to utilize the Phoenix Software as permitted by this
Agreement. Customer agrees that it will not distribute, nor permit
any other person or entity to distribute or exploit, all or any part
of the Phoenix Software in any manner. Customer's obligations under
this Paragraph shall survive termination of this Agreement.
b) The Customer shall not register in its own name any of the
Phoenix Software or any other intellectual or industrial property
right, whether registered or not, used by the Phoenix or any of its
affiliates.
c) The Customer undertakes, for the duration and after the
expiration of this Agreement, not to question the validity of any
proprietary rights of Phoenix in the Phoenix Software or any other
intellectual property right of Phoenix. The invalidity of any
proprietary right in the Phoenix Software shall not be a reason for
the invalidity of this Agreement, nor for the repayment of any sums
paid hereunder. If all or any portion of the Phoenix Software is
declared invalid, the fees paid to the Phoenix hereunder shall be
deemed to have been fixed from the beginning in an amount equal to
the fees due in respect of such invalid proprietary right.
9. Patent and Copyright Indemnity
9.1. Infringement Claims. If a third party claims that the Phoenix System
infringes any patent, copyright, trade secret, or similar
intellectual property right of any third party, and such claim would
impair Customer's right to use the Phoenix system hereunder or
subject the customer to monetary damages, Phoenix shall (as long as
Customer is not in default under this Agreement or any other
agreement with Phoenix) defend Customer against that claim at
Phoenix's expense and pay all damages awarded by a court in a final
judgment, provided that Customer (i) promptly notifies Phoenix in
writing of any such claim, (ii) allows Phoenix to control the
defense and disposition of such claim, including any related
settlement negotiations, and (iii) cooperates with Phoenix, at
Phoenix's expense, in the defense of such claim.
9.2. Remedies. If such a claim is made or appears possible, Phoenix may,
at its option, either (i) secure for Customer the right to continue
to use the Phoenix System, (ii) modify or replace the Phoenix System
so it is non-infringing. If neither of the foregoing is possible,
Phoenix may terminate this Agreement, refund a pro-rata portion of
Customer's set up fees based on a five year straight line cost, and
provide reasonable assistance to allow Customer to migrate to an
alternate vendor. Phoenix has no obligation hereunder for any claim
based on a modified version of the Phoenix System Software which has
not been prepared
9
solely by Phoenix, or for any combination, operation or use of the
Phoenix System with any hardware or software not approved in writing
by Phoenix. THIS SECTION STATES PHOENIX'S ENTIRE OBLIGATION TO
CUSTOMER WITH RESPECT TO MATTERS OF TITLE OR ANY CLAIM OF
INFRINGEMENT THEREOF.
10. Warranties, Disclaimers, and Limitations of Liability.
10.1. Warranty. Phoenix shall perform all Processing Services in a
diligent and workmanlike manner consistent with standards of the
industry. Phoenix further warrants that the Phoenix System shall
operate substantially in accordance with the program descriptions
included in the Documentation. Phoenix does not warrant that the
Phoenix System will operate without interruption or be error-free.
In the event Customer discovers any non-conformance by the Phoenix
System with the above warranty (a "defect"), Customer agrees to
provide Phoenix notice of such defect, and shall, upon Phoenix's
request, provide such data and information regarding the defect as
Phoenix may require to recreate the defect. Phoenix agrees, as its
exclusive obligation for any breach of such warranty, to use its
best reasonable efforts to correct reported defects. Phoenix shall
not be responsible for (i) unreported defects, (ii) defects caused
by misuse or abuse of the Phoenix System, (iii) defects caused by
use of the Phoenix System with hardware or software other than that
approved by Phoenix for use with the Phoenix System, or for (iv)
changes made to the Client Software other than by Phoenix or with
Phoenix's consent. Customer shall be limited to the warranties
provided by third-party licensors or manufacturers with respect to
third-party software or equipment that may be provided by Phoenix.
10.2. Disclaimer. Except as provided above, Phoenix specifically disclaims
any other warranties of any kind, express, implied or statutory,
including, but not limited to, any warranties of merchantability or
fitness for a particular purpose.
10.3. Limitation of Liability. In no event shall Phoenix be liable for any
special, indirect, incidental or consequential damages resulting
from the use, or inability to use, the licensed products or the
provision or non-provision of processing services arising out of any
other circumstances associated with the subject matter of this
agreement, including without limitation damages based on loss of
profit, loss or interruption of data or computer time, alteration or
erroneous transmission of data, even if Phoenix is advised in
advance of the possibility of such damages. Phoenix's total
liability to Customer under any provision of this Agreement (other
than indemnification under Section 9) or for any and all claims,
losses or damages relating to the Licensed Products (whether based
on tort, contract, or any other theory), other than claims based
upon the (gross negligence or) willful misconduct of Phoenix, shall
be limited to the amount actually paid by Customer to Phoenix for
the Licensed Products giving rise to the liability. The parties
acknowledge that each of them relied upon the inclusion of this
limitation in consideration of entering into this Agreement.
10
10.4. Remedy for Default. If Phoenix fails to fulfill its obligations
under this Agreement in any material respect, Customer's sole and
exclusive remedy shall be the right to terminate this Agreement,
except as may be specifically provided herein.
10.5. Third Parties. Phoenix is not liable for any act or omission of any
other company (including Phoenix or any affiliate or licensor of
Phoenix), individual, sub-contractor or agent, furnishing a portion
of the Processing Services or facilities, equipment, or services
associated with such services.
11. Confidential Information
11.1. Confidential Information means any competitively sensitive or secret
business, marketing, or technical information of Phoenix or
Customer, including the terms of this Agreement and all other
Agreements and communications between Phoenix and Customer.
Phoenix's Confidential Information shall also include, but not be
limited to, the Phoenix System and Documentation, including all
changes, modifications, and additions thereto. Customer's
Confidential Information shall also include, but not be limited to,
Customer's data, and all information concerning Customer's customers
and their accounts. Confidential Information shall not include
information which is (i) generally known to the public or readily
ascertainable from public sources (other than as a result of a
breach of confidentiality hereunder), (ii) independently developed
by the receiving party without reference to or reliance on any
Confidential Information of the disclosing party, as demonstrated by
written records of the receiving party, or (iii) obtained from an
independent third party who created or acquired such information
without reference to or reliance on Confidential Information.
11.2. Confidentiality. Each Party agrees at all times to maintain the
complete confidentiality of the Confidential Information of the
other. Each Party shall not permit or authorize access to, or
disclosure of, the Confidential Information of the other to any
person or entity other than employees or advisors who have a "need
to know" such information in order to enable the receiving party to
exercise its rights or perform its obligations under this Agreement.
Neither party shall disclose or supply the Confidential Information
of the other to any non-employee third party without the prior
written approval of the other party, which approval shall not be
unreasonably withheld, provided the requesting party can demonstrate
a need for such disclosure in order to comply with its obligations
hereunder and such third party agrees to be bound by these
confidentiality provisions. Either party may disclose portions of
the Confidential Information of the other to governmental regulatory
authorities if such disclosure is required by applicable laws,
provided the party required to make such disclosure notifies the
other party of the applicable legal requirements before such
disclosure occurs and assists the other party to obtain such
protection as may be available to preserve the confidentiality of
such information.
11
11.3. Disposal. Prior to disposal of any media or materials that contain
any part of the Phoenix System, Documentation, or other Confidential
Information of Phoenix, Customer shall obliterate or otherwise
destroy all code, instructions, commentary, or further evidence of
Confidential Information, for example, by erasing, incinerating, or
shredding such materials.
11.4. Regulator Requests. Phoenix will comply with Customer's reasonable
request for internal or third party auditors access to the Phoenix
Data Center, the Phoenix Banking System relating to Customer, and
Customer's data and reports. Customer will provide Phoenix with
reasonable notice of such audits, and will cause its auditors and
staff to conduct such audits in a manner designed to minimize the
disruption to Phoenix's operations.
12. Termination
12.1. Termination by Phoenix. Phoenix may terminate this Agreement upon:
(a) Customer's failure to pay any amount when due if such amount
is not paid within 90 days following invoice;
(b) Upon a breach of Customer's agreements and obligations
hereunder, if such breach is not cured within 30 days
following notice thereof by Phoenix; or
(c) If Customer ceases to do business, makes a composition or
assignment for the benefit of its creditors, makes a general
arrangement with its creditors concerning any extension or
forgiveness of any of its secured debt, becomes a debtor under
the Bankruptcy Code or insolvent, suffers or seeks the
appointment of a receiver to the whole or any material part of
its business, takes any action to liquidate or wind up the
whole or any material part of its business, is found subject
to any provisions of any bankruptcy code concerning
involuntary bankruptcy or similar proceeding, or suffers a
material adverse change in its financial position.
12.2. Effect of Termination by Phoenix. Upon termination of this Agreement
by Phoenix, Customer will be responsible for all costs of conversion
to a new system, including but not limited to all of Phoenix's
reasonable costs for preparing records, files, reports, and related
materials for transfer, plus any costs and fees for technical
counseling provided by Phoenix. Such costs will be estimated by
Phoenix and incorporated into a separate termination agreement to be
executed prior to termination of services, unless a later date is
mutually agreed upon. In addition, the Customer will be obligated to
purchase all computer equipment deemed surplus by Phoenix as a
result of the termination of this Agreement. The purchase price for
such equipment shall be the then current book value for equipment
purchased by Phoenix or the then current buyout price if the
equipment was leased by Phoenix. Such purchase by the Customer is
limited to equipment purchased or leased in conjunction with
12
Phoenix performing services under this agreement. Phoenix reserves
the right to retain any such equipment for its own use or use of its
other Customers upon termination of the agreement.
12.3. Termination by Customer. Customer may terminate this Agreement upon:
(a) 30 days written notice to Phoenix accompanied by a
cancellation fee based on the remaining unused term of this
Agreement equal to the average monthly invoice for the past
six months multiplied by the remaining number of months left
in the then current term, multiplied by 80%, plus any
unamortized set up fees or third party costs existing on
Phoenix's books on the date of termination. Customer
understands and agrees that Phoenix losses incurred as a
result of early cancellation of the Agreement would be
difficult or impossible to calculate as of the effective date
of cancellation, since the losses incurred will vary based on,
among other things, the number of Customers using the Phoenix
System on the date the Agreement cancelled. Accordingly, the
amount set forth in the first sentence of this subsection
represents the parties' good faith estimate of Phoenix's
liquidated damages, and is not a penalty,
(b) Upon Phoenix's breach of its obligations hereunder as set
forth in Section 7.3 and the expiration of all cure periods
provided for therein.
12.4. Result of Termination by Customer.
(a) If Customer terminates this Agreement under Section 12.3(a),
Customer shall be responsible for all costs and expenses of
conversion to a new system, plus Phoenix's time and materials
rates for assistance required to complete such conversion.
(b) If Customer terminates this Agreement under Section 12.3(b),
Phoenix shall provide reasonable assistance if requested by
Customer to assist in such conversion.
12.5. Return of Data Files. Upon expiration, cancellation, or termination
of this Agreement, Phoenix shall furnish to Customer such copies of
Customer's data files as Customer may request in Phoenix's standard
machine readable format form along with such information as is
reasonable and customary to enable Customer to de-convert from the
Phoenix Banking System. Customer Data files will be delivered
provided Customer consents, agrees and authorizes Phoenix to retain
such files until (i) Phoenix has been paid in full for all fees for
all services provided hereunder through the date of such files are
returned to Customer, and Customer has been paid any and all other
amounts that are due or will become due under this Agreement,
including, but not limited to, data communication lease obligations,
if any; (ii) Phoenix has been paid its then current time and
materials rates for de-conversion assistance, if any, for
13
providing any services necessary or requested by Customer for
de-conversion assistance, (iii) if this Agreement is being
terminated, Phoenix has been paid any applicable termination and
cancellation fee pursuant to this agreement, and (iv) Customer has
returned to Phoenix all Phoenix Confidential Information requested
by Phoenix. Upon Customer's approval, Phoenix shall be permitted to
destroy customer's files and data any time after 90 days from the
final use of such files for processing.
12.6. Return of Phoenix Software and Documentation.
Upon termination, expiration or cancellation, the Customer shall
return to Phoenix all copies of the Phoenix Software, Documentation
and manuals and other documentation provided to Customer or prepared
by Customer in relation to the Phoenix Software. The Customer will
remove all copies of the Phoenix Software from its equipment and
certify such fact by written correspondence to Phoenix, the Customer
will immediately discontinue use and/or exploitation of Phoenix
Software, make any and all payments owed to Phoenix under this
Agreement or under any agreement between Phoenix and Customer and
cease any claim or further right in or to the Phoenix Software. Upon
the occurrence of a termination by Phoenix, Phoenix shall be
entitled to receive its costs, court costs, costs of investigation,
and reasonable attorneys fees and expenses, in collecting protect or
preserve its rights with respect to the Licensed Software.
The Customer acknowledges that the failure of the Customer to cease
using and returning the Phoenix Software at the termination or
expiration of this Agreement will result in immediate and
irremediable damage to Phoenix and to the rights of any subsequent
licensee. The Customer acknowledges and admits that there is no
adequate remedy at law for such failure and agrees that in the event
of such failure, Phoenix shall be entitled to equitable relief by
way of temporary and permanent injunctions and such other and
further relief as any court with jurisdiction may deem just and
proper.
13. Migration.
The Customer may migrate to an in-house environment at any time
after the first year of the initial term of this Agreement. To
migrate, Customer must pay Phoenix a software license fee for the
Phoenix System at Phoenix's then current price, less a discount
determined by the number of years customer has received service
hereunder as follows:
Completion of Discount
Year as Customer Percentage
1 12%
2 16%
3 20%
4 24%
5 30%
14
Customer must notify Phoenix at least 180 days prior to the intended
date of migration of its intent to execute such option. Upon
migration to an in-house processing, Customer will assume all
reasonable costs for preparing records, files, reports, and related
materials, any technical counseling provided by Phoenix, all
installation and implementation costs for such migration, and must
purchase the hardware, network, and communications equipment
required to support such processing as required by Phoenix. Such
costs will be estimated by Phoenix and incorporated into a separate
agreement to be executed prior to the migration of the system unless
a later date is agreed upon. Additionally, Customer will be
obligated to purchase all computer equipment deemed surplus by
Phoenix as a result of the migration. The purchase price shall be
the then current book value for equipment purchased by Phoenix or
the then current buyout price if the equipment was leased by
Phoenix. Such purchase by the Customer is limited to equipment
purchased or leased in conjunction with Phoenix performing services
under this agreement.
14. Indemnification by Customer.
After the date hereof, Customer shall defend, indemnify and hold
Phoenix, its officers, directors, employees, agents, shareholders
and affiliates, harmless from and against any and all demands,
claims, actions or causes of action, assessments, losses, damages,
liabilities, costs, expenses (including reasonable attorneys' fees,
interest, penalties and disbursements and court costs), settlements
or money judgments asserted against, resulting to, or imposed upon
Phoenix, directly or indirectly, by reason of, or resulting from the
breach by Customer of any representation, warranty, covenant,
agreement or other obligation of Customer contained in or made
pursuant to this Agreement or any other document or instrument
delivered in connection with this Agreement, or any claims arising
in connection with or relating to the business of Customer or the
presence, removal, condition, location or use of the Processing
Services or use of the Phoenix System or of or relating to the
Material or any transmission, or interconnection of such Material
with third party providers or carriers or the use or misuse of the
subject matter being transmitted or any other claim made against
Phoenix relating to Customer's programming or transmissions.
15. Miscellaneous.
15.1. Exclusivity. Phoenix shall be the exclusive provider of application
processing service to Customer during the term of this Agreement.
15.2. Rights Not Exclusive. No right or remedy of either party provided
hereby shall be exclusive of any other right or remedy.
15.3. No Waiver. No failure of either party to exercise any of its rights
under any provision of this Agreement or waiver of any breach of the
terms of this
15
Agreement by the other party shall be construed as waiver of such
rights or of any other breach of the same or any other provision
hereof
15.4. Notices. All notices, requests and other communications required or
permitted to be given or delivered hereunder to either party should
be in writing, and shall be personally delivered, or sent by
certified or registered mail, postage prepaid and addressed, or by
overnight courier such as Federal Express to such party at the
address shown on the first page of this Agreement, or at such other
address as shall have been furnished by notice given in compliance
with this section. All notices, requests and other communications
shall be deemed to have been given upon delivery as evidenced by the
return receipt or delivery records of the courier.
15.5. Insurance. Customer shall maintain such insurance coverage as it
deems appropriate to protect Customer and its customers from losses
or damages, including without limitation losses or damages resulting
from any theft, forgery, computer manipulation or other misconduct
of any person. Phoenix shall carry liability insurance but shall not
be liable for any losses or damages in excess of the lesser of
$1,000,000 or the amount of any such liability coverage or the
amounts provided for in Section 10.3 hereof, Customer shall also
maintain workers' compensation, public liability and group travel
insurance coverage for Customer's employees while on the premises of
Phoenix.
15.6. Entire Agreement. The parties agree that this agreement, and all
exhibits and attachments hereto contain the entire agreement between
the parties concerning the subject matter hereof.
15.7. Amendment, Waiver. This agreement may not be amended or altered and
no rights shall be deemed waived unless such amendment or waiver is
set forth in writing and executed by all parties hereto.
15.8. Assignment. This agreement may not be assigned by either party
without the express written consent to of the other party, provided
that either party may assign all of its rights and obligations
hereunder to any successor in interest to all or substantially all
of its business or assets without such consent if such successor
agrees to be bound by the terms of this Agreement. This agreement
shall be binding upon and shall inure to the benefit of each party's
permitted successors and assigns.
15.9. Severability_ If any provision of this agreement should be held to
be invalid, illegal or unenforceable, then such provision shall be
construed in such a way as to make such provision enforceable, or
this agreement shall be construed as if such provision had never
been contained herein, and such invalidity, illegality or
unenforceability shall not affect any other provision hereof.
15.10. Headings. The headings contained in this agreement are for
convenience only and shall be ignored when interpreting this
agreement and shall not be construed
16
to alter or change any provision hereof
15.11. Choice of Law. This agreement shall be governed by the laws of the
State of Florida without regard to its choice of law rules.
15.12. Force Majeure. Neither party shall be in default by reason of any
failure in the performance of this agreement (other than a failure
to make payment when due or to comply with restrictions upon the use
of any confidential information or trade secrets) if such failure
arises out of any act, event or circumstance beyond the reasonable
control of such party, whether or not otherwise foreseeable. The
party so affected will resume performance as soon as reasonably
possible.
15.13. Enforcement; If either party brings an action under this agreement
(including appeal), the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs.
15.14. Counterparts. This agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and which
when taken together shall constitute one complete instrument.
15.15. Litigation. All disputes regarding or arising out of this Agreement
shall be heard exclusively in the Courts of the State of Florida to
which jurisdiction and venue the parties irrevocably consent, except
that Phoenix shall be entitled to obtain equitable relief, such as
injunctive relief, from any court of competent jurisdiction in order
to protect its rights in the Phoenix System, or any associated
intellectual property rights. Termination or limitation of Phoenix's
rights in the Phoenix System, or any associated intellectual
property rights may not be awarded under any circumstances.
15.16. Compliance with Law. Customer is and will be during the Term of this
Agreement, will be, in compliance with all government laws, rules,
regulations and administrative requirements, including without
limitation:
(a) Submitting a copy of this agreement to the appropriate
regulatory agencies prior to the date Services commence;
(b) Providing adequate notice to the appropriate regulatory
agencies of the termination of this Agreement or any material
changes in Services;
(c) retaining records of its accounts as required by regulatory
authorities;
(d) Obtaining and maintaining, at its own expense, any Fidelity
Bond required by any regulatory or government agency; and
(e) Maintaining at its own expense, such casualty and business
interruption insurance coverage for loss of records from fire,
disaster, or other causes, and taking such precautions
regarding the same, as may be required by regulatory
authorities.
17
15.17. Employees. During the Term of this Agreement and for a period of two
years thereafter, neither party will directly or indirectly solicit
for employment any employee of the other without the prior written
consent of the other. In the event of a breach of this paragraph,
the breaching party shall pay the non-breaching party a sum equal to
the employees base compensation for the previous twelve month period
multiplied by on hundred thirty-three percent (133%). This sum shall
be deemed liquidated damages and shall be agreed to be a fair sum to
compensate the non-breaching party.
15.18. Third Party Review: Phoenix provides for periodic SAS 70, Type I
independent audits of its operations. Phoenix shall provide each
Client serviced from the audited data center with a copy of the
audit and shall charge each Client a prorated share of the audit
cost not to exceed $1,000.00 per audit. Each audit shall comply with
all applicable FDIC other federal regulations pertaining thereto.
Phoenix and Client agree that third party auditor will be
responsible for proper application and testing of currently
applicable data processing and regulatory standards.
15.19. Survival. All rights and obligations of the parties under this
Agreement that, by their nature, do not terminate with the
expiration or termination of this Agreement shall survive the
expiration or termination of this Agreement.
15.20. Not a Joint Venture or Partnership. This Agreement shall not be
construed as creating a joint venture, co-venture or a
co-partnership between the parties nor result in a joint service
offering to their respective customers. Neither party shall have any
authority to bind the other or the other's representatives in any
way.
ACCEPTED AND AGREED AS OF THE EFFECTIVE DATE:
Two River Community Bank Phoenix International Ltd., Inc.
------------------------------------ ----------------------------------------
Signature Signature
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------ ----------------------------------------
Print Name Print Name
Senior Vice President & Treasurer Senior Vice President
------------------------------------ ----------------------------------------
Print Title Print Title
November 17, 1999 November 18, 1999
------------------------------------ ----------------------------------------
Date Date
18
EXHIBIT A
Processing Services
-------------------
Customer & Product Controls
Administrative Controls
Customer Processing Deposit Processing Loan Processing Teller
Processing Nightly Processing
General Ledger Administration & Maintenance Executive Information System
Data Dictionary: Deposits
Data Dictionary: Loans
Data Dictionary: Customer Information
Report Dictionary Internet Home Banking Voice Response
Safe Deposit Box Processing
▇▇▇ Processing
ACH Processing
Call Report Extracts (quarterly)
19
EXHIBIT B
Standard Fee Schedule
Account and Transaction Processing Pricing
(All fees monthly unless specified)
Core Processing Volume Sensitive Monthly Fee
--------------- ---------------- -----------
Minimum Processing Fee up to 10,000 accounts $ 5,000
Monthly minimum for Core Processing
months 1-4 $ 2,500
Deposit Accounts $.60 per account
Loan Accounts $.75 per account
General Ledger $.25 per account
Relationship Management System Included
Teller System Included
Executive Information System Included
Ancillary Systems
Call Reporting $200.00
Accounts Payable $250.00
Loan Origination $500.00
Deposit Document Preparation $500.00
Voice Response System $600.00
Internet Banking $.15 per account $1,500.00
Optical Reporting $.01 per account $500.00
Test Bank $.05 per account $400.00
Business Recovery Service $.02 per account $500.00
Data Communications
Terminal Access $15.00 per terminal
Communications Hardware maintenance $65.00 per month
Telephone Lines Pass thru
Equipment Charges DSU/CSU Pass thru
Phoenix Inc. shall add to these charges an administrative fee of Eight Percent
(8%) to all pass through costs
20
Data Transmissions
------------------
Coupon Orders $200.00
Check Orders $200.00
ATM Balance Files $500.00
ATM Card Files $200.00
Debit Card Files $500.00
POD/Statement Files $500.00
Receiving ACH Files $500.00
Originating ACH Files $500.00
Misc., Transaction Files Quote
Note: All fees quoted herein are minimum monthly processing fees. Conversion,
training, installation and processor certification fees for all ancillary
products will be quoted under separate cover upon request.
21
Standard Fee Schedule
Non-Recurring Fees
------------------
Research Fee Based upon actual time at then current rate
Data Base Mass Changes Based upon actual time at then current rate
Third Party Certification Currently Phoenix certified $2,500.00
Non-certified based upon actual time at then current rates
New Branch Set up Fees
Branches 1-5 No Charge
Branches 5-20 $2,500.00 per branch
System Administrator Changes
New Product Set up Fee
(includes parameter set up and testing)
Deposit per product
Loans per product
Relationship
Management System $250.00 per product
Other System Administrator Changes
(Includes parameter set up and testing)
General Ledger
Bank Controls
Security changes 10 Free Changes per month
Additional changes based
upon actual time at then
current rates
Design Teller Receipts $200.00 per receipt
Develop Crystal Reports $75.00 per request
Custom Extracts/Development Quote
Teller and Platform Procedures Manual Quote
Safe Deposit Box Setup Quote
One Time Set Up Fee
Base on asset size, number of
products and accounts
System Implementation Services:
Set-Up Phoenix Product Definitions
Deposit, Loans, Client Relationship $40,000.00 Minimum
Management, and General
Ledger Set up base
Training Fees
Phoenix Training For Core System $25,400.00 plus reasonable out of pocket
travel expense
Standard Fee Schedule
22
Phoenix Internet Banking System *
Estimated Installation Costs
Implementation Services $ 9,600.00
▇▇▇▇ Payment Set up Fees $ 3,000.00
Web Site Design Quote
Monthly Recurring Fee $.15 per account $1,500.00 Minimum
Data Communications Charges Pass Thru
Phoenix Voice Response System *
Estimated Installation Costs
Implementation Services $ 7,000.00
Voice Response Hardware Required $ 8,000.00.
Data Communications Charges Pass Thru
* Price quotes valid until Nov 30,1999
23
Exhibit C - Communication Management Services
Local Network Services
Phoenix shall act as Customer's designated representative to arrange for the
purchase, installation and maintenance of data lines, modems or other interface
devices necessary to access the Phoenix System. Maintenance services shall be
provided for a designated call window and service level (i.e., depot, on-site)
as shall be agreed upon by Phoenix and Customer. Where requested, this option
may include additional dial-up lines and equipment to be utilized as a back up
to the regular data lines.
Phoenix shall ▇▇▇▇ Customer for the actual charges incurred for the data lines
and for the maintenance of the modems and other interface devices. Phoenix shall
add to these charges an administrative fee of eight percent (8 %), equipment
purchase and installation fees will be amortized over 36 months and will be
billed to Customer at the price listed below or Customer shall pay one time for
all hardware and installation upon installation of the hardware and
communications lines. Customer shall have ownership of the equipment at the end
of the full amortization period or shall pay the unamortized balance if the
contract is terminated prior to sixty (60) months.
Estimated Monthly Line Costs $ 700.00
Network Design Services
Phoenix shall perform a survey of Customer's operations and shall analyze
communications requirements. A network design plan shall be created and
submitted to Customer for its approval. Where Customer has requested, the plan
shall include a provision for Dial Backup service for Contingency Operations.
Network Design Fee: $ 1,000.00
24
SCHEDULE C.1
------------
Communications Equipment
(To Be Completed within I week of Effective Date)
Location Description Unit/Model Unit/Price Total
-------- ----------- ---------- ---------- -----
Bank Two River Community Bank Phoenix, Inc.
By: _________________________________ By: ______________________________
Name: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name:
--------------------------------- ------------------------------
Title: Senior Vice President & Treasurer Title:
--------------------------------- ------------------------------
Date: November 17, 1999 Date:
--------------------------------- ------------------------------
25
DATA COMMUNICATIONS AUTHORIZATION LETTER
----------------------------------------
Phoenix , Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
This letter authorizes Phoenix to act as our representative to order on our
behalf the equipment and/or circuitry shown on the attached Schedule C-1.
It is further understood and agreed that Title to the computer hardware shall
pass from the manufacturer/supplier to Client upon full payment.
Phoenix will acquire all hardware and related telecommunications equipment and
order required telecommunications lines and will be responsible for payment of
all invoices relative to the purchase, delivery, installation, insurance, and
subsequent maintenance of the above equipment, plus any taxes that may apply.
Phoenix will capitalize the equipment and related telecommunications costs over
the initial thirty-six (36) month term of the Agreement and invoice client on a
monthly basis beginning on the month in which the communications facilities are
first utilized.
Original manufacturers terms and conditions are in effect on delivery and if
maintenance services are desired, they are described in manufacturer/supplier
documents.
Sincerely,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Two River community Bank
-------------------------------------------
Title: Senior Vice President & Treasurer
-------------------------------------------
Date: November 17, 1999
-------------------------------------------
26
EXHIBIT D
Installation And Training Activities
Training in the use and operation of the Phoenix Banking System' licensed to
Phoenix by Phoenix International Ltd., Inc., a Florida corporation ("Phoenix")
for the number of Client personnel designated will be provided primarily at the
Client site or, alternately, at a site designated by Phoenix . Installation
services are those activities designated to establish the Bank on the Phoenix
Banking SystemTM at the Phoenix , Ronkonkoma, New York, center and to transfer
the processing of Client's data from the present financial servicer processing
system to Phoenix for any existing Client accounts to be serviced by Phoenix .
A. Phoenix Responsibilities
1. Phoenix shall designate a Phoenix installation manager to oversee
all installation activities and coordinate these activities with the
Client Liaison.
2. Phoenix shall conduct a post-contract impact analysis to determine
changes in Client's operation activities to conform to the Phoenix
System.
3. The Phoenix installation manager shall meet at Client's site with
Client's management and operation personnel, as soon as possible
after execution of the Agreement, for a detailed discussion of
installation and training activities. Detailed Installations plan,
specifying Phoenix and Client responsibilities will be completed
within 15 business days of the Agreement.
4. Phoenix shall write and test the computer software programs required
to convert Client's database and accounts from the current processor
or formats and third party processors or formats to the appropriate
Phoenix format. Phoenix shall also review results of the
installation and edit programs with Client to verify accuracy.
5. Phoenix shall provide education and training to designated Client
personnel and the applications selected by Client from Schedule A.
6. All training shall take place at Client Banking Office, or, if
necessary, at a Phoenix designated training facility in accordance
with the mutual agreed upon installation and training activities
referenced in paragraph 3 above.
Phoenix shall verify that Client's personnel have concluded training
and are ready for processing under the Phoenix system for their
necessary use of the system.
Phoenix shall monitor Client's site preparation activities and
provide advice regarding:
- Telecom Equipment; Remote Print.
- Telecom Line Locations.
- Electrical Power Requirements.
- Air Conditioning Requirements.
27
B. Client Responsibilities
Client shall designate a Client installation manager to be Phoenix 's
primary contact. The Client installation manager shall be responsible for
coordination of proper resources from Client management and operations to
ensure timely completion of all Client projects, including but not limited
to:
o Review and selection of processing options.
o Establishing Chart of Accounts.
o Gathering information for product and parameter set-up.
o Analysis and verification of pre-installation test output.
o Availability of Client to assist in balancing and verification of
data accuracy.
Client shall designate a training manager to coordinate attendance at
Phoenix training classes and to supervise the training of all other Client
personnel by the ▇▇▇▇▇▇▇ ▇▇▇▇▇. The training manager shall verify that
personnel selected by Client to attend Phoenix classes have sufficient
product knowledge and experience to teach other Client staff. The training
manager shall also assure that there is sufficient time set aside for the
training of all necessary and available Client's personnel.
Client shall notify third parties in writing of its intent to use Phoenix
as the data processing service provider and will support Phoenix 's
actions in set-up, deconverting, testing and preparing the Phoenix system
for productive use.
Client shall select and order all forms, coupons, and other items
necessary for supporting the loan servicing operation.
Client shall prepare the installation site for all Equipment and Telecom
lines including proper electrical and air conditioning.
28
Client shall use only equipment that has been certified for use with the
software by Phoenix. Phoenix may be contracted to provide equipment and
installation service in which case the equipment to be purchased will be
specified in Schedule C.I., attached,
Bank Two River Community Bank Phoenix, Inc.
By: _________________________________ By: ______________________________
Name: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- ------------------------------
Title: Senior Vice President & Treasurer Title: Senior Vice President
--------------------------------- ------------------------------
Date: November 17, 1999 Date: November 18, 1999
--------------------------------- ------------------------------
29
EXHIBIT E
Business Recovery Services
BUSINESS RECOVERY SERVICES
A "Disaster" shall mean any unplanned interruption of the operations of or
inaccessibility to the Phoenix Data Center which appears, in Phoenix 's
reasonable judgment, to require relocation of processing to an alternative site
Phoenix shall notify Client as soon as possible after it deems a service outage
to be a Disaster. Phoenix shall move the processing of Client's Base On-line
Services to an alternative processing center as expeditiously as possible, and
shall coordinate the cutover to back-up data lines with the appropriate
carriers. Client shall maintain adequate records of all transactions during the
period of service interruption, and shall have personnel available to assist
Phoenix in implementing the switch over to the alternative-processing site.
During a Disaster, Optional or On-Request Services shall be provided by Phoenix
only to the extent that there is adequate capacity at the alternate center, and
only after stabilizing the provision of Base Online Services.
TESTING
Phoenix shall test its Business Recovery Services Plan by conducting one (1)
annual test. Client agrees to participate in one f test annually to assist
Phoenix in such testing. Test results will be made available to Client's
regulators, internal and external auditors, and (upon request) to Client's
insurance underwriters,
CLIENT BUSINESS RECOVERY PLANNING
Client understands and agrees that the Phoenix Business Recovery Plan is
designed to minimize but not eliminate risks associated with a Disaster
affecting Phoenix 's Application Processing Center. Phoenix does not warrant
that service will be uninterrupted or error free in the event of a Disaster.
Client maintains responsibility for adopting a Business Recovery Plan relating
to disasters affecting Client's facilities, and for securing business
interruption insurance or other insurance as necessary to properly protect
Client's revenues in the event of a disaster. Phoenix disaster and recovery
services shall meet all applicable FDIC or other federal regulatory
requirements.
30
COMMUNICATIONS
Phoenix shall work with Client to establish a plan for alternative data
communications in the event of a Disaster. Client shall be responsible for
furnishing any additional communications equipment and data lines required under
the adopted plan from the Client's Diaster Recovery Facility to Phoenix's
Processing Application Center
Bank Two River Community Bank Phoenix, Inc.
By: _________________________________ By: ______________________________
Name: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- ------------------------------
Title: Senior Vice President & Treasurer Title: Senior Vice President
--------------------------------- ------------------------------
Date: November 17, 1999 Date: November 18, 1999
--------------------------------- ------------------------------
Please retain the second copy of this authorization form for your records.
31
EXHIBIT F
Performance Expectations/Standards
System Availability (Hours of Operation)
----------------------------------------
On-Line: 7:00 a.m. - 8:00 p.m. Monday - Friday
7:00 a.m. - 3:00 p.m. Saturday
Unattended Sunday and Holidays
System Availability
-------------------
Monthly Average 98%
Report Delivery
---------------
Receipt of Optical Download:
Terminal Response Time
----------------------
Transaction Average
Client Service Responsiveness
-----------------------------
Help Desk: 7:30 a.m. - 5:00 p.m. M-F
After Hours : On Call
Data Center Project Schedule: Published monthly
Status Reporting: Prior day exceptions by 9:00
a.m.
Incident Resolution Call: 2 hours intervals until
resolution
Data Communications
-------------------
Terminal (Station)
Additions/Deletions: 2 weeks from date of request
Branch Additions: Subject to Data Communications
Provider
Record Retention
----------------
Daily Production Files 60 days
EOM 13 months
EOQ 5 quarters
EOY 7 years (offsite)
32
Amendment # 1 to the Application Processing Agreement between ▇▇▇▇▇▇▇
Financial Solutions, Inc. ("HFS") and Two River Community Bank ("Customer"),
dated on or about November 17, 1999.
This Amendment #1 to the Application Processing Agreement (the "Amendment #1 ")
is entered into between ▇▇▇▇▇▇▇ Financial Solutions ("HFS") and Two River
Community Bank ("Customer"), and modifies a certain Application Processing
Agreement dated on or about November 17, 1999 between Customer and Phoenix
International LTD. (HFS' predecessor in interest), whereby Customer contracted
for certain Processing Services related to HFS' Phoenix System (the "Processing
Agreement"). The terms and conditions set forth in this Addendum are in addition
to the terms and conditions contained in the Processing Agreement and any other
referenced addenda, attachments, exhibits, schedules (together, the
"Agreement"). Where conflicts arise between the terms of the Agreement and this
Amendment, the specific terms of this Amendment shall govern. Customer and HFS
agree to modify the terms of the Agreement as follows:
HFS has assumed the Agreement. Therefore, "Phoenix International, LTD" is
changed to "▇▇▇▇▇▇▇ Financial Solutions, Inc.", and "Phoenix" is changed to
"HFS" where such terms appear in the Agreement.
Section 3. Term. This section is replaced in its entirety as follows:
----------------
The term of this Agreement will extend through June 30, 2006. Upon
expiration, the Agreement will automatically renew for successive terms of
two (2) years unless either party provides written notice to the other of
its intent not to renew for another term at least six (6) months prior to
the expiration of the Agreement.
Exhibit B --- Standard Fee Schedule. In Exhibit B of the Agreement:
The sections entitled Core Processing and Data Transmissions are
eliminated and replaced with the following:
"Customer agrees to pay to HFS the following fees for the Remote
Processing Services. Except as otherwise provided, all fees are recurring
monthly fees. Customer understands and agrees that all fees quoted herein
are monthly processing fees.
"Conversion, training, installation and processor certification fees for
any products not specified herein will be provided by HFS to Customer
separately upon Customer's request."
1
Recurring Monthly Fees Based on Customer's Asset Value
Commencing on January 1, 2005 and for each month thereafter during the
renewal period of the Agreement, Customer will pay fees based on the
Customer's Asset Value according to the following schedule:
Customer shall pay to HFS a Monthly Asset Value Payment (as defined below)
in each month of the agreement (prorated for the number of days of partial
months). Customer shall pay to HFS a Monthly Asset Value Payment based on
its Asset Value as of the last business day of the immediately preceding
month. Each Monthly Asset Value Payment shall be due and payable within
thirty (30) days of Customer's receipt of an invoice for such amount.
Monthly Asset Value Payment. For purposes of this Amendment #1, "Monthly
Asset Value Payment" shall mean and be determined according to the
following formula:
Monthly Asset Value Payment:
$6800.00 + ($22.00 x (total bank assets/one million))
For the computation above, "total bank assets" is in millions.
Reporting Requirements. On or before the third (3rd) business day of each
calendar month, Customer shall submit to HFS (by such means as directed by
HFS from time to time (i.e., via email, fax or other means where
confirmation of receipt by HFS is available)) its Asset Value as of the
last business day of the immediately preceding calendar month. In the
event Customer fails to provide its Asset Value in a timely manner as
provided in this Section, HFS shall have the right and option to either
(i) wait on the Asset Value to be provided or (ii) rely on the most
recently provided Asset Value for Customer and proceed with invoicing for
charges as provided hereunder (and adjusting the charges for the
immediately following months if the Asset Value is subsequently determined
to have been incorrect).
The Section entitled Non-Recurring Fees is amended as follows:
Develop Crystal Reports... Quote
Additional Fees
All other terms in Exhibit B remain in force, including, without
limitation, the fees related to Data Communications and all other
Non-Recurring Fees (beginning on page 21 of the Agreement). Any additional
data communication requirements or Non-Recurring Fees not listed in
Exhibit B are subject to Quote and additional fees.
2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above:
▇▇▇▇▇▇▇ FINANCIAL SOLUTIONS, INC TWO RIVER COMMUNITY BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- ---------------------------------
(Authorized Signature)
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- ---------------------------------
Title:SVP and General Manager Title: EVP/CFO
----------------------------- ---------------------------------
Date: 02/01/2005 Date: 02/01/2005
----------------------------- ---------------------------------
3