AGREEMENT between Fiserv Solutions, Inc. 255 Fiserv Drive Brookfield, WI 53045-5815 and United Bankshares, Inc. 500 Virginia Street Charleston, WV 25392 Date: January 1, 2005 Proprietary and Confidential

Exhibit 10.2

AGREEMENT

between

Fiserv Solutions, Inc.
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and

United Bankshares, Inc.
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Date: January 1, 2005

Proprietary and Confidential

AGREEMENT dated as of January 1, 2005 (“Agreement”) between Fiserv Solutions, Inc., a Wisconsin corporation (“Fiserv”), and United Bankshares, Inc., (“Client”).

Fiserv and Client hereby agree as follows:

1.

Term. The initial term of this Agreement shall end 7 years following the date written above (“Effective Date”). Unless written notice of non-renewal is provided by either party at least 365 days prior to expiration of the initial term or any renewal term, this Agreement shall automatically renew for an additional term of one year.

2.

Services.

	(a)		Services Generally. Fiserv, itself and through its affiliates, agrees to provide Client, and Client agrees to obtain from Fiserv services (“Services”) and products (“Products”) (collectively, “Fiserv Services”) described in the attached Exhibits:
			Exhibit A – Account Processing Services
			Exhibit B – Materials Purchased Through Fiserv
			Exhibit C – Software Products
			Exhibit D – E-Commerce Services
			Exhibit E – Development Services
			Exhibit F – Item Processing Services
			The Exhibits set forth specific terms and conditions applicable to the Services and/or Products, and, where applicable, the Fiserv affiliate so performing. Client may select additional services and products from time to time by incorporating an appropriate Exhibit to this Agreement.
	(b)		Implementation Services. Fiserv will provide services (i) to convert Client’s existing applicable data and/or information to the Fiserv Services; and/or (ii) to implement the Fiserv Services. These activities are referred to as “Implementation Services”. Client agrees to cooperate with Fiserv in connection with Fiserv’s provision of Implementation Services and to provide all necessary information and assistance to facilitate the conversion and/or implementation. Client is responsible for all out-of-pocket expenses associated with Implementation Services. Fiserv will provide Implementation Services as required in connection with Fiserv Services.
	(c)		Training Services. Fiserv shall provide training, training aids, user manuals, and other documentation for Client’s use as Fiserv finds necessary to enable Client personnel to become familiar with Fiserv Services. If requested by Client, classroom training in the use and operation of Fiserv Services will be provided at a training facility designated by Fiserv. All such training aids and manuals remain Fiserv’s property.

3.

Fees for Fiserv Services.

(a)

General. Client agrees to pay Fiserv:

	(i)		all fixed fees for the current month applicable to each Service and/or Product;
	(ii)		all other fees calculable up to the date of invoice
	(iii)		out of pocket charges for the month payable by Fiserv for the account of Client; and
	(iv)		taxes (as defined below) thereon (collectively, “Fees”).

Fiserv shall timely reconcile Fees paid by Client for the Fiserv Services for the month and the fees and charges actually due Fiserv based on Client’s actual use of Fiserv Services for such month. Fiserv shall either issue a credit to Client or provide Client with an invoice for any additional fees or other charges owed. Fiserv may change the amount of Fees billed to reflect appropriate changes in actual use of Fiserv Services. Fees may be increased from time to time as set forth in the Exhibits. Fiserv agrees to hold the rates for SourceOne variable services currently being used for the term of the agreement and for those not used for a period of three years from the Effective Date of the Agreement; except, however, for any service provided by a third party. Such service rates may be increased upon any increase by the third party. Upon notification to and acceptance by Client, Fiserv may increase its fees in excess of amounts listed in the Exhibits in the event that Fiserv implements Major System Enhancements (“Major System Enhancement” defined as any required change that would increase the Fixed Monthly Fee by 20 percent for all Fiserv clients) to comply with changes in law, government regulation, or industry practices.

	(b)		Additional Charges. Fees for out-of-pocket expenses, such as telephone, microfiche, courier, and other charges incurred by Fiserv for goods or services obtained by Fiserv on Client’s behalf shall be billed to Client at cost plus the applicable Fiserv administrative fee as set forth in the Exhibits. Such out-of-pocket expenses may be changed from time to time upon notification of a fee change from a vendor/provider. The Fees do not include, and Client shall be responsible for, furnishing transportation or transmission of information between Fiserv’s service center(s), Client’s site(s), and any applicable clearinghouse, regulatory agency, or Federal Reserve Bank.
	(c)		Taxes. Fiserv shall add to each invoice any sales, use, excise, value added, and other taxes and duties however designated that are levied by any taxing authority relating to the Fiserv Services (“Taxes”). In no event shall “Taxes” include taxes based upon Fiserv’s net income.
	(d)		Payment Terms. Fees for Fiserv Services are due and payable monthly via ACH draft. The invoice shall be mailed by the 10th day of each month to be received by Client no later than the 15th day of each month and will contain:

	(i)		all fixed fees for the current month applicable to each Service and/or Product;
	(ii)		all other fees calculable up to the date of invoice; and
	(iii)		sales or other taxes thereon.

Detail supporting charges appearing on the invoice will be provided within 15 days at client’s request. On the last business day prior to the end of each month, Fiserv shall initiate a draft from a demand deposit account designated by Client in the total amount due on all Fiserv invoices to Client produced that month. Client shall have 60 days from the date of invoice to notify Fiserv of a disputed amount, and Fiserv shall have 30 days from receipt of such notification to provide a response. *

4.

Access to Fiserv Services.

	(a)		Procedures. Client agrees to comply with applicable regulatory requirements and operating and access procedures for use of Services established by Fiserv.
	(b)		Changes. Fiserv continually reviews and modifies Fiserv systems used in the delivery of Services (the “Fiserv System”) to improve service and comply with government regulations, if any, applicable to the data and information utilized in providing Services. Fiserv reserves the right to make changes in Services, including but not limited to operating procedures, type of equipment or software resident at, and the location of Fiserv’s service center(s). Fiserv will notify Client of any material change that affects Client’s normal operating procedures, reporting, or service costs prior to implementation of such change. *
	(c)		Communications Lines. Fiserv shall order the installation of appropriate communication lines and equipment to facilitate Client’s access to Services. Client understands and agrees to pay charges relating to the installation and use of such lines and equipment as set forth in the Exhibits.
	(d)		Terminals and Related Equipment. Client shall obtain necessary and sufficient terminals and other equipment, approved by Fiserv and compatible with the Fiserv System, to transmit and receive data and information between Client’s location(s), Fiserv’s service center(s), and/or other necessary location(s). Fiserv and Client may mutually agree to change the type(s) of terminal and equipment used by Client.

5. Client Obligations.

	(a)		Input. Client shall be solely responsible for the input, transmission, or delivery to and from Fiserv of all information and data required by Fiserv to perform Services unless Client has retained Fiserv to handle such responsibilities, as specifically set forth in the Exhibits. The information and data shall be provided in a format and manner approved by Fiserv. Client will provide at its own expense or procure from Fiserv all equipment, computer software, communication lines, and interface devices required to access the Fiserv System. If Client has elected to provide such items itself, Fiserv shall provide Client with a list of compatible certified equipment and software; Client agrees to pay Fiserv’s standard fee for recertification of the Fiserv System resulting from the purchase of equipment or software not previously certified by Fiserv.
	(b)		Client Personnel. Client shall designate appropriate Client personnel for training in the use of the Fiserv System, shall supply Fiserv with reasonable access to Client’s site during normal business hours for Implementation Services and shall cooperate with Fiserv personnel in their performance of Services.

	(c)		Use of Fiserv System. Client shall (i) comply with any operating instructions on the use of the Fiserv System provided by Fiserv; (ii) review all reports furnished by Fiserv for accuracy; and (iii) work with Fiserv to reconcile any out of balance conditions or discrepancies. Client shall determine and be responsible for the authenticity and accuracy of all information and data submitted to Fiserv.
	(d)		Client’s Systems. Client shall be responsible for ensuring that its systems are Year 2000 compliant and otherwise capable of passing and/or accepting data from and/or to the Fiserv System.

6.

Ownership and Confidentiality.

(a)

Definition.

	(i)		Client Information. “Client Information” means: (A) confidential plans, customer lists, information, and other proprietary material of Client that is marked with a restrictive legend, or if not so marked with such legend or is disclosed orally, is identified as confidential at the time of disclosure (and written confirmation thereof is promptly provided to Fiserv); and (B) any information and data concerning the business and financial records of Client’s customers prepared by or for Fiserv, or used in any way by Fiserv in connection with the provision of Fiserv Services (whether or not any such information is marked with a restrictive legend).
	(ii)		Fiserv Information. “Fiserv Information” means: (A) confidential plans, information, research, development, trade secrets, business affairs (including that of any Fiserv client, supplier, or affiliate), and other proprietary material of Fiserv that is marked with a restrictive legend, or if not so marked with such legend or is disclosed orally, is identified as confidential at the time of disclosure (and written confirmation thereof is promptly provided to Client); and (B) Fiserv’s proprietary computer programs, including custom software modifications, software documentation and training aids, and all data, code, techniques, algorithms, methods, logic, architecture, and designs embodied or incorporated therein (whether or not any such information is marked with a restrictive legend).
	(iii)		Information. “Information” means Client Information and Fiserv Information. No obligation of confidentiality applies to any Information that the receiving party (“Recipient”) (A) already possesses without obligation of confidentiality; (B) develops independently; or (C) rightfully receives without obligation of confidentiality from a third party. No obligation of confidentiality applies to any Information that is, or becomes, publicly available without breach of this Agreement.

	(b)		Obligations. Recipient agrees to hold as confidential all Information it receives from the disclosing party (“Discloser”). All Information shall remain the property of Discloser or its suppliers and licensors. Information will be returned to Discloser at the termination or expiration of this Agreement. Fiserv specifically agrees that it will not use any non-public personal information about Client’s customers in any manner prohibited by Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. Recipient will use the same care and discretion to avoid disclosure of Information as it uses with its own similar information that it does not wish disclosed, but in no event less than a reasonable standard of care. Recipient may only use Information in accordance with the purpose of this Agreement. Recipient may disclose Information to (i) employees and employees of affiliates who have a need to know; and (ii) any other party with Discloser’s written consent. Before disclosure to any of the above parties, Recipient will have a written agreement with such party sufficient to require that party to treat Information in accordance with this Agreement. Recipient may disclose Information to the extent required by law. However, Recipient agrees to give Discloser prompt notice so that it may seek a protective order. Not withstanding anything to the contrary in this Section 6 (b), Client may share output files, formats, and layouts for which development fees were paid to Fiserv through the development process defined in Exhibit E with third parties without the prior written consent of Fiserv. The provisions of this sub-section survive any termination or expiration of this Agreement.
	(c)		Residuals. Nothing contained in this Agreement shall restrict Recipient from the use of any ideas, concepts, know-how, or techniques contained in Information that are related to Recipient’s business activities (“Residuals”), provided that in so doing, Recipient does not breach its obligations under this Section. However, this does not give Recipient the right to disclose the Residuals except as set forth elsewhere in this Agreement.
	(d)		Fiserv System. The Fiserv System contains information and computer software that are proprietary and confidential information of Fiserv, its suppliers, and licensors. Client agrees not to attempt to circumvent the devices employed by Fiserv to prevent unauthorized access thereto, including, but not limited to, alterations, decompiling, disassembling, modifications, and reverse engineering thereof.
	(e)		Information Security. Fiserv shall implement and maintain appropriate measures designed to meet the objectives of the guidelines establishing standards for safeguarding nonpublic personal information about Client’s customers as adopted by any federal financial regulatory agency having authority over Client’s and consumer affairs. These measures will include taking appropriate actions to address incidents of unauthorized access to Client’s sensitive customer and consumer information, including notification to Client as soon as possible of any such incident.

(f)

Confidentiality of this Agreement. Fiserv and Client agree to keep confidential the prices, terms and conditions of this Agreement, without disclosure to third parties.

7.

Regulatory Agencies, Regulations and Legal Requirements.

	(a)		Client Files. Records maintained and produced for Client (“Client Files”) may be subject to examination by such Federal, State, or other governmental regulatory agencies as may have jurisdiction over Client’s business to the same extent as such records would be subject if maintained by Client on its own premises. Client agrees that Fiserv is authorized to give all reports, summaries, or information contained in or derived from the data or information in Fiserv’s possession relating to Client when formally requested to do so by an authorized regulatory or government agency. Fiserv will notify Client in such instance unless prohibited by court order or other governing body.
	(b)		Compliance with Regulatory Requirements. Client agrees to comply with applicable regulatory and legal requirements, including without limitation:

	(i)		submitting a copy of this Agreement to the appropriate regulatory agencies prior to the date Services commence or anytime as required by the appropriate regulatory agency;
	(ii)		providing adequate notice to the appropriate regulatory agencies of the termination of this Agreement or any material changes in Services;
	(iii)		retaining records of its accounts as required by regulatory authorities;
	(iv)		obtaining and maintaining, at its own expense, any Fidelity Bond required by any regulatory or governmental agency; and
	(v)		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.

8.

Warranties.

(a)

Fiserv Warranties. Fiserv represents and warrants that:

	(i)		(A) Services will conform to the specifications set forth in the Exhibits and documentation; (B) Fiserv will perform Client’s work accurately provided that Client supplies accurate data and information, and follows the procedures described in all Fiserv documentation, notices, and advices; (C) Fiserv personnel will exercise due care in provision of Services; (D) the Fiserv System will comply in all material respects with all applicable Federal regulations governing Services; and (E) the Fiserv System is Year 2000 compliant. In the event of an error or other default caused by Fiserv personnel, systems, or equipment, Fiserv shall correct the data or information and/or reprocess the affected item or report at no additional cost to Client. Client agrees to supply Fiserv with a written request for correction of the error within 10 days after Client’s receipt of the work containing the error. Work reprocessed due to errors in data supplied by Client, on Client’s behalf by a third party, or by Client’s failure to follow procedures set forth by Fiserv shall be billed to Client at Fiserv’s then current time and material rates; and
	(ii)		It owns or has a license to furnish all equipment or software comprising the Fiserv System. Fiserv shall indemnify Client and hold it harmless against any claim or action that alleges that the Fiserv System use infringes a United States patent, copyright, or other proprietary right of a third party. Client agrees to notify Fiserv promptly of any such claim and grants Fiserv the sole right to control the defense and disposition of all such claims. Client shall provide Fiserv with reasonable cooperation and assistance in the defense of any such claim.

THE WARRANTIES STATED HEREIN ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY FISERV. FISERV DOES NOT MAKE, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF FISERV FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF FISERV SERVICES.

(b)

Client Warranties. Client represents and warrants that: (i) no contractual obligations exist that would prevent Client from entering into this Agreement; (ii) it has complied with all applicable regulatory requirements; and (iii) it has requisite authority to execute, deliver, and perform this Agreement. Client shall indemnify and hold harmless Fiserv, its officers, directors, employees, and affiliates against any claims or actions arising out of (iv) the use by Client of the Fiserv System in a manner other than that provided in this Agreement; and (v) any and all claims by third parties through Client arising out of the performance and non-performance of Fiserv Services by Fiserv, provided that the indemnity listed in clause (v) hereof shall not preclude Client’s recovery of direct damages pursuant to the terms and subject to the limitations of this Agreement.

9.

Limitation of Liability.

	(a)		General. IN NO EVENT SHALL FISERV BE LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM CLIENT’S USE OF FISERV SERVICES, OR FISERV’S SUPPLY OF EQUIPMENT OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT OR IN CONTRACT. CLIENT MAY NOT ASSERT ANY CLAIM AGAINST FISERV MORE THAN 2 YEARS AFTER SUCH CLAIM ACCRUED. FISERV’S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTION RELATING TO THIS AGREEMENT SHALL BE LIMITED TO * PRECEDING THE DATE THE CLAIM ACCRUED. *
	(b)		Lost Records. If Client’s records or other data submitted for processing are lost or damaged as a result of any failure by Fiserv, its employees, or agents to exercise reasonable care to prevent such loss or damage, Fiserv’s liability on account of such loss or damages shall not exceed the reasonable cost of reproducing such records or data from exact duplicates thereof in Client’s possession.

10.

Disaster Recovery.

	(a)		General. Fiserv maintains a disaster recovery plan (“Disaster Recovery Plan”) for each Service provided by Fiserv as outlined in the Disaster Recovery Plan. A “Disaster” shall mean any unplanned interruption of the operations of or inaccessibility to Fiserv’s service center in which Fiserv, using reasonable judgment, requires relocation of processing to a recovery location. Fiserv shall notify Client as soon as possible after Fiserv deems a service outage to be a Disaster. Fiserv shall move the processing of Client’s standard services to a recovery location as expeditiously as possible and shall coordinate the cut-over to back-up telecommunication facilities 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 Fiserv in implementing the switchover to the recovery location. During a Disaster, optional or on-request services shall be provided by Fiserv only to the extent adequate capacity exists at the recovery location and only after stabilizing the provision of base services. *
	(b)		Communications. Fiserv shall work with Client to establish a plan for alternative communications in the event of a Disaster.
	(c)		Disaster Recovery Test. Fiserv shall test the Disaster Recovery Plan annually. Client agrees to participate in and assist Fiserv with such test, if requested by Fiserv. Upon Client’s request, test results will be made available to Client’s management, regulators, auditors, and insurance underwriters.
	(d)		Client Plans. Fiserv agrees to release information necessary to allow Client’s development of a disaster recovery plan that operates in concert with the Disaster Recovery Plan. Fiserv agrees to cooperate with Client in the development and testing of Client’s disaster recovery plan, at Client’s expense.
	(e)		No Warranty. Client understands and agrees that the Disaster Recovery Plan is designed to minimize, but not eliminate, risks associated with a Disaster affecting Fiserv’s service center(s). Fiserv does not warrant that Fiserv Services will be uninterrupted or error free in the event of a Disaster; no performance standards shall be applicable for the duration of a Disaster. Client maintains responsibility for adopting a disaster recovery plan relating to disasters affecting Client’s facilities and for securing business interruption insurance or other insurance necessary for Client’s protection.

11.

Termination.

	(a)		Material Breach. Except as provided elsewhere in this Section 11, either party may terminate this Agreement in the event of a material breach by the other party not cured within 90 days following written notice stating, with particularity and in reasonable detail, the nature of the claimed breach.
	(b)		Failure to Pay. In the event any invoice remains unpaid by Client 30 days after due, or Client deconverts any Core Services data from the Fiserv System without prior written consent of Fiserv, Fiserv, at its sole option, may terminate this Agreement and/or Client’s access to and use of Fiserv Services. However, Fiserv may not exercise its right to terminate the Agreement and/or Client’s access to and use of the Fiserv Services unless and until Fiserv has sent written notice to Client’s President that the invoice remains unpaid and the invoice is not paid in full within ten (10) days of receipt of such notice. Any invoice submitted by Fiserv shall be deemed correct unless Client provides written notice to Fiserv within 45 days of the invoice date specifying the nature of the disagreement.

	(c)		Remedies. Remedies contained in this Section 11 are cumulative and are in addition to the other rights and remedies available to Fiserv under this Agreement, by law or otherwise.
	(d)		Defaults. If Client:

	(i)		defaults in the payment of any sum of money due and fails to remedy such breach as set forth in Section 11(b);
	(ii)		breaches this Agreement in any material respect or otherwise defaults in any material respect in the performance of any of its obligations and fails to cure such breach as set forth in Section 11(a); or
	(iii)		commits an act of bankruptcy or becomes the subject of any proceeding under the Bankruptcy Code or becomes insolvent or if any substantial part of Client’s property becomes subject to any levy, seizure, assignment, application, or sale for or by any creditor or governmental agency;

then, in any such event, Fiserv may, upon written notice, terminate this Agreement and be entitled to recover from Client as liquidated damages an amount equal to the present value of all payments remaining to be made hereunder for the remainder of the initial term or any renewal term of this Agreement. For purposes of the preceding sentence, present value shall be computed using the “prime” rate (as published in The Wall Street Journal) in effect at the date of termination and “all payments remaining to be made” shall be calculated based on the average bills for the 3 months immediately preceding the date of termination for services provided by Fiserv, exclusive of pass through costs as part of Client billing. Client agrees to reimburse Fiserv for any expenses Fiserv may incur, including reasonable attorneys’ fees, in taking any of the foregoing actions.

	(e)		Convenience. Client may terminate this Agreement by paying a termination fee based on the remaining unused term of this Agreement, the amount to be determined by multiplying the average of Client’s three most recent invoices for each Fiserv Service received by Client *, plus any unamortized conversion fees or third party costs existing on Fiserv’s books on the date of termination. Client understands and agrees that Fiserv losses incurred as a result of early termination of the Agreement would be difficult or impossible to calculate as of the effective date of termination since they will vary based on, among other things, the number of clients using the Fiserv System on the date the Agreement terminates. Accordingly, the amount set forth in the first sentence of this subsection represents Client’s agreement to pay and Fiserv’s agreement to accept as liquidated damages (and not as a penalty) such amount for any such Client termination.
	(f)		Merger. In the event of a merger between Client and another organization in which (A) Client is not the surviving organization, (B) where the other organization is not currently a user of Fiserv services similar to the Services being provided hereunder, and (C) Client shall convert from Fiserv’s Services directly to the surviving organization, Fiserv will allow an early termination of this Agreement upon the following terms and conditions:

	(i)		Written notice must be given 6 months in advance, specifying the deconversion date;
	(ii)		Fiserv may specify a deconversion date (not more than 30 days after the requested deconversion date), based on its previous commitments and work loads; and
	(iii)		Fiserv may charge a termination fee based on the remaining unused term of this Agreement, the amount to be determined by multiplying the Client’s average monthly invoice (using the three months immediately preceding Fiserv’s receipt of written notice) * plus any unamortized conversion fees or third party costs existing on Fiserv’s books on the date of deconversion.
	*

(g)

Return of Data Files. Upon expiration or termination of this Agreement, Fiserv shall furnish to Client such copies of Client Files as Client may request in a Fiserv standard format along with such information and assistance as is reasonable and customary to enable Client to deconvert from the Fiserv System, provided, however, that Client consents and agrees and authorizes Fiserv to retain Client Files until (i) Fiserv is paid in full for (A) all Services provided through the date such Client Files are returned to Client; and (B) any and all other amounts that are due or will become due under this Agreement; (ii) Fiserv is paid its then standard rates for the services necessary to return such Client Files; (iii) if this Agreement is being terminated, Fiserv is paid any applicable termination fee pursuant to subsection (d) or (e) above; and (iv) Client has returned to Fiserv all Fiserv Information requested. After notification by the Client in writing, Fiserv shall be permitted to destroy Client files. Notification by the Client must be received within 30 days from the final use of Client files for processing.

(h)

Miscellaneous. Client understands and agrees that Client is responsible for the deinstallation and return shipping of any Fiserv-owned equipment located on Client’s premises.

12.

Dispute Resolution.

	(a)		General. Except with respect to disputes arising from a misappropriation or misuse of either party’s proprietary rights, any dispute or controversy arising out of this Agreement, or its interpretation, shall be submitted to and resolved exclusively by arbitration under the rules then prevailing of the American Arbitration Association, upon written notice of demand for arbitration by the party seeking arbitration, setting forth the specifics of the matter in controversy or the claim being made. The arbitration shall be heard before an arbitrator mutually agreeable to the parties; provided, that if the parties cannot agree on the choice of arbitrator within 10 days after the first party seeking arbitration has given written notice, then the arbitration shall be heard by 3 arbitrators, 1 chosen by each party, and the third chosen by those 2 arbitrators. The arbitrators will be selected from a panel of persons having experience with and knowledge of information technology and at least 1 of the arbitrators selected will be an attorney. Discovery shall not be permitted. A hearing on the merits of all claims for which arbitration is sought by either party shall be commenced not later than 60 days from the date demand for arbitration is made by the first party seeking arbitration. The arbitrator(s) must render a decision within 10 days after the conclusion of such hearing. Any award in such arbitration shall be final and binding upon the parties and the judgment thereon may be entered in any court of competent jurisdiction.
	(b)		Applicable Law. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. §§1–16 and the Federal Rules of Evidence. The arbitrators shall apply the substantive law of the State of Wisconsin, without reference to provisions relating to conflict of laws. The arbitrators shall not have the power to alter, modify, amend, add to, or subtract from any term or provision of this Agreement, nor to rule upon or grant any extension, renewal, or continuance of this Agreement. The arbitrators shall have the authority to grant any legal remedy available had the parties submitted the dispute to a judicial proceeding.
	(c)		Situs. If arbitration is required to resolve any disputes between the parties, the proceedings to resolve the first such dispute shall be held in Milwaukee, Wisconsin, the proceedings to resolve the second such dispute shall be held in Charleston, West Virginia, and the proceedings to resolve any subsequent disputes shall alternate between Milwaukee, Wisconsin and Charleston, West Virginia.

13.

Insurance. Fiserv carries the following types of insurance policies:

	(a)		Commercial General Liability in an amount not less than $1 million per occurrence for claims arising out of bodily injury and property damage;
	(b)		Commercial Crime covering employee dishonesty in an amount not less than $5 million;
	(c)		All-risk property coverage including Extra Expense and Business Income coverage; and
	(d)		Workers Compensation as mandated or allowed by the laws of the state in which Services are being performed, including $1 million coverage for Employer’s Liability.

14.

Audit. Fiserv employs an internal auditor responsible for ensuring the integrity of its processing environments and internal controls. In addition, as may be required by law or regulation, Fiserv provides for periodic independent audits of its operations. Fiserv shall provide Client with a copy of the audit of the Fiserv service center providing Services within a reasonable time after its completion and shall charge each client a fee based on the pro rata cost of such audit as billed to each Fiserv client receiving services. Fiserv shall also provide a copy of such audit to the appropriate regulatory agencies, if any, having jurisdiction over Fiserv’s provision of Services.

15.

General.

(a)

Binding Agreement. This Agreement is binding upon the parties and their respective successors and permitted assigns. Neither this Agreement nor any interest may be sold, assigned, transferred, pledged, or otherwise disposed of by Client, whether pursuant to change of control or otherwise, without Fiserv’s prior written consent. Client agrees that Fiserv may subcontract any services to be performed hereunder. However, Fiserv agrees not to subcontract its Core Services without prior written consent of Client and such consent will not be unreasonably withheld. Any such subcontractors shall be required to comply with all applicable terms and conditions.

(b)		Entire Agreement. This Agreement, including its Exhibits, which are expressly incorporated herein by reference, constitutes the complete and exclusive statement of the agreement between the parties as to the subject matter hereof and supersedes all previous agreements with respect thereto. Modifications of this Agreement must be in writing and signed by duly authorized representatives of the parties. Each party hereby acknowledges that it has not entered into this Agreement in reliance upon any representation made by the other party not embodied herein. In the event any of the provisions of any Exhibit are in conflict with any of the provisions of this Agreement, the terms and provisions of this Agreement shall control unless the Exhibit in question expressly provides that its terms and provisions shall control.
(c)		Severability. If any provision of this Agreement is held to be unenforceable or invalid, the other provisions shall continue in full force and effect.
(d)		Governing Law. This Agreement will be governed by the substantive laws of the State of Wisconsin, without reference to provisions relating to conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
(e)		Force Majeure. Neither party shall be responsible for delays or failures in performance resulting from acts reasonably beyond the control of that party.
(f)		Notices. Any written notice required or permitted to be given hereunder shall be given by: (i) Registered or Certified Mail, Return Receipt Requested, postage prepaid; (ii) confirmed facsimile; or (iii) nationally recognized courier service to the other party at the addresses listed on the cover page or to such other address or person as a party may designate in writing. All such notices shall be effective upon receipt.
(g)		No Waiver. The failure of either party to insist on strict performance of any of the provisions hereunder shall not be construed as the waiver of any subsequent default of a similar nature.
(h)		Financial Statements. Fiserv shall provide Client and the appropriate regulatory agencies so requiring a copy of Fiserv, Inc.’s audited consolidated financial statements.
(i)		Prevailing Party. The prevailing party in any arbitration, suit, or action brought against the other party to enforce the terms of this Agreement or any rights or obligations hereunder, shall be entitled to receive its reasonable costs, expenses, and attorneys’ fees of bringing such arbitration, suit, or action.
(j)		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.
(k)		Exclusivity. Client agrees that Fiserv shall be the sole and exclusive provider of the services that are the subject matter of this Agreement. For purposes of the foregoing, the term “Client” shall include Client affiliates. Client agrees not to enter into an agreement with any other entity to provide these services (or similar services) during the term of this Agreement without Fiserv’s prior written consent. If Client acquires another entity, the exclusivity provided to Fiserv hereunder shall take effect with respect to such acquired entity as soon as practicable after termination of such acquired entity’s previously existing arrangement for these services. If Client is acquired by another entity, the exclusivity provided to Fiserv hereunder shall apply with respect to the level or volume of these services provided immediately prior to the signing of the definitive acquisition agreement relating to such acquisition and shall continue with respect to the level or volume of these services until any termination or expiration of this Agreement. Not withstanding anything to the contrary in this Section 15 (k), Client may permit an affiliate acquired after the date of this Agreement to maintain an agreement in effect at the time of such acquisition with any other entity which is providing the services that are subject matter of this Agreement. However, Client may not move existing accounts or services covered under the scope of this Agreement from any existing affiliate to the data processing provider of the newly acquired affiliate during the initial term or any renewal term of this Agreement.
(l)		Recruitment of Employees. Each party agrees not to hire the other party’s employees during the term of this Agreement and for a period of 6 months after any termination or expiration thereof, except with the other party’s prior written consent.
(m)		Publicity. Client and Fiserv shall have the right to make general references about each other publicly and the type of services being provided hereunder to third parties, such as auditors, regulators, financial analysts, and prospective customers and clients. The parties shall mutually agree on a press release relating to the execution of this Agreement. In conjunction with this, the party initiating such release shall give the other party a reasonable opportunity to review and comment on the content thereof prior to its release.

Page 9 of 11

(n)

Independent Contractors. Client and Fiserv expressly agree they are acting as independent contractors and under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose. This Agreement shall not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other except as expressly authorized herein.

Page 10 of 11

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date indicated below.

For Client:		For Fiserv:
United Bankshares, Inc.		Fiserv Solutions, Inc.

By		/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇				By		/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name		▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇				Name		▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title		Executive Vice President				Title		President
Date		[November 15, 2005]				Date		[November 17, 2005]

Page 11 of 11

Exhibit A

Account Processing Services

Client agrees with Fiserv as follows:

1.

Services. Fiserv will provide Client and Client accepts the Account Processing Services (the “Account Processing Services”) specified in the Account Processing Services Fee Schedule attached as Exhibit A - 1 hereto marked with a “F” in the left margin, which represents that the Service is included in the Account Processing Services Fixed Monthly Fee. Other Services therein shall be provided when requested by Client and accepted by Fiserv.

2.

Fees. Fiserv will provide Client with the following Account Processing Services at the fees and prices indicated:

	(a)		Fixed Monthly Fee. For an Account Processing Services Fixed Monthly Minimum Fee of $151,673, Fiserv agrees to provide and Client agrees to pay for the Services marked with an “F” in the left margin on Exhibit A - 1 of this Agreement. All other Services provided hereunder shall be provided to the Client upon reasonable request at then current pricing and in accordance with this Agreement. Fiserv will provide its variable services, as defined in Exhibit A - 1, at prices that Fiserv charges generally to its client base. The Client understands that the mix of services, volumes and other factors affect the price that Fiserv charges for its Variable Services.
	(b)		Fee Adjustment Factors. The delivery of the Services involves factors and risks that may increase Fiserv’s cost of providing such Services. Notwithstanding the foregoing, Fiserv agrees to limit increases in its fees for those Services included in the Account Processing Services Fixed Monthly Fee as follows:

	(i)		Inflation. Fiserv reserves the right to increase fees by the annual change in the U.S. Department of Labor Consumer Price Index (Consumer Price Index for All Urban Consumers (CPI-U): U. S. City Average). Fiserv shall use the change in the published index for the previous twelve months to compute the percentage increase in computing the fee for the next twelve months. *
	(ii)		Volume Adjustment. For volume related Account Processing Services Fixed Monthly Fee adjustments, Fiserv shall reprice the Account Processing Services Fixed Monthly Fee in accordance with the following:

	A.		“Client Account Volumes” shall be defined as total open Deposit Accounts (Demand, Savings, and Time), and total open Retail Loan (Installment, Line of Credit and Mortgage) volumes and Commercial Loan Notes.
	B.		Proposed volumes (“Proposed Volumes”) are those Client Account Volumes that were used to compute the Account Processing Services Fixed Monthly Fee above. In the first month following the conversion of any such Service, Fiserv shall validate Client’s Client Account Volumes as of the conversion (“Post Conversion Volumes”). In the event that the Post Conversion Volumes exceed or are less than the Proposed Volumes, Fiserv shall reprice the Account Processing Services Fixed Monthly Fee by applying the per account charge presented below to Post Conversion Volumes.
	C.		In the event that the Client acquires other financial institutions or branches or portfolios of accounts for which Fiserv will provide Account Processing Services, or elects to have Fiserv provide Account Processing Services to existing affiliates other than those contemplated by this Agreement, upon each such conversion Fiserv shall reprice the Account Processing Services Fixed Monthly Fee by applying the per account charge presented below to Post Conversion Volumes.
	D.		In the event that Client sells branches or portfolios of accounts for which Fiserv provides Account Processing Services, upon each such deconversion, Fiserv shall recalculate the Account Processing Services Fixed Monthly Fee by applying the per account charge presented below to the post deconversion volumes. However, in no instance will the Fixed Monthly Fee be reduced below the Fixed Minimum Fee during the Term of this Agreement.
	E.		Upon completion of each calendar year throughout the term of this Agreement, Fiserv shall reprice the Account Processing Services Fixed Monthly Fee by applying the per account charge presented below to then current year end Client Account Volumes, adjusted for any inflationary increases applied as described above.

Page 1 of 41

	Client Account Volumes			Per Account Charge
	*				*

(c)

Conversion Fees.

(i)

Minimum Support Conversion. In the event that the Client acquires other financial institutions or branches or portfolios of accounts for which Fiserv will provide Account Processing Services, or elects to have Fiserv provide Account Processing Services to existing affiliates other than the aforementioned, or elects to implement additional Account Processing Services under the terms and conditions of this Agreement, Fiserv agrees to provide “Minimum Support” Conversion Services for a fee * . Reasonable out-of-pocket, pass-through or other third party expenses will be billed as incurred. Minimum Support shall include the services below. Additional support above the “Minimum Support” level will be quoted on a time and material basis.

	A.		Comprehensive Project Plan for overall project
	B.		Participate in regularly scheduled conversion meetings
	C.		Balance vendor input to Fiserv output
	D.		Application Conversion Task Plans for each converting application
	E.		Automatic check for duplicate accounts against converting bank file
	F.		Telephone first calls for all applications, including Technical Call
	G.		Product Mapping
	H.		Program Specifications for all applications where volume exceeds 300 accounts
	I.		Conversion Programming for all applications where volume exceeds 300 accounts.
	J.		Validation for all applications where volume exceeds 300 accounts
	K.		1 — 2 sets of edits per application. Additional edits will be provided at no cost in the event of a Fiserv related error.
	L.		1 CIF conversion to be completed in conjunction with the applications conversion
	M.		Manual conversions for all applications where volume is less than 300 accounts
	N.		2 weeks of telephone support for all applications where volume exceeds 300 accounts
	O.		2 Automatic Merge to be scheduled at Client request

(ii)

Merger. In the event that Client elects to merge existing Affiliates into a consolidated bank during the term of this Agreement, Fiserv shall provide “Minimum Support” for each Affiliate merger for a fee * . Such Minimum Support shall include the following:

	A.		Comprehensive Project Plan for overall project
	B.		Programming for account re-coding on the non-surviving entity.
	C.		Conversion planning conference calls
	D.		Automatic check for duplicate accounts
	E.		Telephone first calls for all applications
	F.		Consolidation of Bank and Branch Numbers into a single entity
	G.		Two set of output reports per application for Client verification. Additional reports will be provided at no cost in the event of a Fiserv related error.
	H.		2 Automatic Merges to be scheduled at client request

	(iii)		Additional support requests outside of those mentioned above that may be requested by the Client will be quoted on a time and material basis.
	(iv)		Should Client acquire an entity currently processing on the SourceOne platform, Fiserv shall incorporate such entity into Client’s processing environment * . Fiserv shall use good faith efforts to minimize the costs associated with the acquisition of an entity using another Fiserv solution for core processing. *

3.

Responsibility for Accounts. Client shall be responsible for balancing its accounts each business day and notifying Fiserv immediately of any errors or discrepancies. Provided that Client promptly notifies Fiserv of any discrepancy in Client’s accounts, Fiserv shall, at its expense, promptly recompute accounts affected by discrepancies solely caused by Fiserv computer or software systems or provide for another mutually agreeable resolution. Fiserv will use its commercially reasonable efforts to correct errors attributable to Client or other third-party servicers of Client.

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4.		Annual Histories. Fiserv currently maintains annual histories, where applicable, for its clients. These histories can be used to reconstruct Client files in an emergency. However, in order to permit prompt and accurate reconstruction of accounts, Client agrees to retain at all times and make available to Fiserv upon request the most recent data printout(s) received from Fiserv, together with copies or other accurate and retrievable records of all transactions to be reflected on the next consecutive printout(s).
5.		Reconstruction of Error Conditions. Reconstruction of error conditions attributable to Client or to third parties acting on Client’s behalf will be done at prevailing rates as set forth in Exhibit A - 1.
6.		Major Software Enhancements and Custom Programming. All major software enhancements and custom programming will be subject to additional charges for processing and development in accordance with Exhibit A - 1 and Exhibit E hereto. Fiserv is obligated to keep its software market competitive and in federal regulatory compliance during the term of this Agreement.
7.		Protection of Data.

	(a)		For the purpose of compliance with applicable government regulations, Fiserv has developed an operations backup center. Fiserv tests the procedure periodically to ensure the data center’s compliance. Fiserv maintains copies of transaction off premises in secured vaults.
	(b)		Fiserv provides systems security utilizing commercially reasonable standards to protect Client Files from unauthorized access in compliance with applicable governmental regulations.
	(c)		Upon Client providing access to Client Files through Client’s customers’ personal computers or voice response system, Client agrees to indemnify and hold harmless Fiserv, its officers, directors, employees, and affiliates against any claims or actions arising out of such access to Client Files or any Fiserv files (including the files of other Fiserv clients) or the Fiserv System or other Fiserv systems.

8.

Processing Priority. Fiserv does not subscribe to any processing priority; all users receive equal processing consideration.

9.

Regulatory Supervision. By entering into this Agreement, Fiserv agrees that regulatory agencies having authority over Client’s operations shall have the authority and responsibility provided to the regulatory agencies pursuant to the Bank Service Corporation Act, 12 U.S.C. 1867(C) relating to services performed by contract or otherwise.

10.

Fiserv Compliance with Regulatory Requirements. Fiserv shall maintain the Fiserv Services and make all necessary changes to the Fiserv System and Fiserv Services to comply with all applicable federal, state, and local regulations that relate to the Fiserv Services (the “Applicable Laws”). Client agrees to notify Fiserv of changes in the Applicable Laws of which Client is aware. Fiserv may charge Client the pro rata portion of any costs to comply with state or local Applicable Laws divided among any other Fiserv clients requesting such work. Fiserv may request Client assistance regarding state and local Applicable Law interpretation and associated Fiserv Systems and Services change design and/or testing from time to time. Such assistance shall be provided by Client without charge to Fiserv.

11.

Additional Commitments.      *

Page 3 of 41

Exhibit A - 1

Account Processing Services Fee Schedule

Monthly

Fee *

System or Service

Unit Price *

Description *

Account Analysis

Per Account

History Retention

Regional Pricing

Account Reconcilement

Per Item

Per Item

History Retention

▇▇▇▇▇▇▇ Systems

Comply/Wire

Comply/CTR

ATM Special Services

ATM Statement Print Services

Balance File Transmissions

ATM Auto Reissue from Hotcard

ATM Visa Automated Exception Update

ATM Card Access to Line of Credit (LOC)

Audit Confirmation Reports

Automated Clearinghouse

Receiving Transactions/Items

Originations Transactions/Items

Originations Transactions/Items

RJE Origination

PDM’s (Company Processing)

Tape Conversion

Page 4 of 41

Monthly

Fee *

System or Service

Unit Price *

Description *

Automated Clearinghouse (Cont.)

ATM/POS File Processing

Daily Transmissions (From ATM switches and/or Clearing Houses)

Automated Returns

ACH Item Notices

Notification of Change

Direct Line Receiving from Fed

Direct Line Origination to Fed

Payroll Processing

Stop Payments/DNE

FEDI Receiving

FEDI Origination:

Customer Implementation

Customer Statement Implementation

Per Record

EPA (Electronic Payment Authorization)

Risk

Stop Payment Fee

AA Interface for Extended Statistics

Automated Settlement

EDI Fax File to Expedite

Browser Based Host Access

Access and Installation Fee

Bulk Filing

Page 5 of 41

Monthly

Fee *

System or Service

Unit Price *

Description *

▇▇▇▇▇▇▇▇ Products

Fees are Per Institution

ONUS Fraud Implementation

ONUS Fraud Monthly Fee

Deposit Fraud Implementation

Deposit Fraud Monthly Fee

Central Marketing File

Implementation Fee

Standard Build

Special Options Build

Off-Cycle Build

Combined Interest

Commercial Loans

Consulting Services

Coupon Books

Credit Bureau Reporting

Custom Interfaces (Including Mailbox, FTP)

Implementation

Incoming Transmissions

Outgoing Transmissions

Page 6 of 41

Monthly

Fee *

System or Service

Unit Price *

Description *

Custom Interfaces (Including Mailbox, FTP) (Cont.)

FTP Internet Transmissions (FTP End Point User)

Federated Investors Interface

Customer Information File

Address Labels

Alpha-Key Merge

9-Digit Zip Code (ZIP+4)

National Change of Address (NCOA)

CRF Accounts (Alpha-Keys)

CRF Miscellaneous Accounts (Non-Fiserv Applications)

GEO Code

Foreign Citizen Backup Withholding

Global CRF Pricing Implementation

CIF Loan Liability Profile Report

CIF Request Report

Account Comments Report

Customer Comments Report

Address Standardization

Implementation

Page 7 of 41

Monthly

Fee *

System or Service

Unit Price *

Description *

Customer Information File (Cont.)

Address Standardization Run

Address Standardization Request Report

Address Standardization Monthly Fee

Customer to Customer Implementation

Customer to Customer Monthly Fee

Customer Reporting System

Delivery Point Bar Coding (DPBC)

Barcoding Notices

Data Access Service (DAS)

Per Record/Report

Page 8 of 41

Monthly

Fee *

System or Service

Unit Price *

Description *

Data Access Service (Cont.)

Storage

Weekend Discounts

Data Communications

Data Communications

Deconversion

Deconversion

Deluxe One Network

Access

Demand Deposits

Transactions Processed

Account Maintenance

Interest Bearing Accounts

Closed Accounts

Current Day Transaction File

History Retention:

Seven Day

Extended

Page 9 of 41

	Monthly
	Fee *			System or Service			Unit Price *		Description *
				Demand Deposits (Cont.)
				Mutual Funds Sweep
				Statement Zip Code Sort
				Service Charge Routine Implementation
				Service Charge Routine Change
				Accrual Adjustment Program
				Account Number Production
				Posting by Category Sort Option
				DD Kiting Suspect Report
				Combined Balance Service Charge
				Current Month NOW Sweep Fee
				Overnight Investments
				DD Sweep Transactions
				DD Sweep Notices
				Automatic Transfer Items
				Automatic Transfer Notices
				Prior Day BAI Interface File
				DD Daily Extract File
				Controlled Disbursements
				Escrow Management
				Rent Security
				Principal/Escrow
				▇▇▇▇ Reporting
				Exception Processing
				Cash Letter Implementation

Monthly

Fee *

System or Service

Unit Price *

Description *

General ▇▇▇▇▇▇

▇▇ Base Fee

Account Centers

GL Transactions

Budget:

Current and Next Year Versions

Working Year Version Optional

Prior Year Version Optional

Additional Budget Versions

Outgoing Interface Extract

Application Interfaces

GL Maintenance

GL Recurring Entries

Reports

EMR Reports

Interface Report Implementation

Interface Reports (As Passed Reports)

IE Ledger Trial Balances & Transaction Reports

Transaction History

90 Days Transaction History

Host Disaster Contingency Planning

Host/RJE Site Support

InformEnt Data Collection

Late Payment Interest Charge

Late Payment Interest Charge

Maturity Analysis Reporting