Exhibit 4.8
REMITTANCE PROCESSING SERVICES AGREEMENT
between
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
and
REGULUS WEST LLC
Dated as of October 25, 1999
[***]= Pursuant to 17 CFR 230.406, confidential information has been
omitted and has been filed separately with the Securities and
Exchange Commission pursuant to a Confidential Treatment
Application filed with the Commission.
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS......................................................2
ARTICLE 2. TERM OF AGREMENT.................................................4
2.01 Term............................................................4
2.02 Expiration and Renewal..........................................4
ARTICLE 3. MIGRATION........................................................4
3.01 Migration Plan..................................................4
3.02 Extensions to the Migration Plan................................5
3.03 Migration Completion............................................5
3.04 Alternate Source................................................6
ARTICLE 4. SERVICES.........................................................7
4.01 Services........................................................7
4.02 Systems.........................................................7
4.03 Licenses and Permits............................................8
4.04 Changes in Law and Regulations..................................8
4.05 Vendor Acknowledgment...........................................9
4.06 Accuracy of Data................................................10
4.07 Correction of Errors............................................10
4.08 Reports.........................................................11
ARTICLE 5. NEW SERVICES.....................................................11
5.01 New Services....................................................11
5.02 Third Party Services............................................11
ARTICLE 6. SERVICE LEVELS...................................................12
6.01 Service Levels..................................................12
6.02 Services Levels During Migration................................12
6.03 [***]...........................................................12
6.04 Continuous Improvement Program..................................13
6.05 Root-Cause Analysis and Resolution..............................13
ARTICLE 7. SERVICE LOCATIONS................................................14
7.01 Location of Services............................................14
7.02 Safety and Security Procedures..................................14
7.03 Security Relating to Major Competitors..........................15
ARTICLE 8. PROJECT TEAM.....................................................16
8.01 Vendor Key Managers.............................................16
8.02 Subcontractors..................................................17
8.03 Non-Competition.................................................17
8.04 Non-Disclosure Agreement........................................18
ARTICLE 9. SOFTWARE AND PROPRIETARY RIGHTS..................................19
9.01 Vendor Software.................................................19
9.02 Changes and Upgrades to Hardware or Software....................20
9.03 AMEX Rights.....................................................21
9.04 AMEX Marks......................................................22
ARTICLE 10. DATA AND REPORTS................................................22
10.01 Ownership of AMEX Data.........................................22
10.02 Return of Data.................................................22
ARTICLE 11. CONTINUED PROVISION OF SERVICES.................................23
11.01 Disaster Recovery Plan.........................................23
11.02 Force Majeure..................................................24
11.03 Allocation of Resources........................................25
ARTICLE 12. PAYMENTS TO VENDOR..............................................25
12.01 Fees...........................................................25
12.02 Rate Adjustments...............................................26
12.03 Expenses.......................................................27
12.04 Rights of Set-Off..............................................27
12.05 Unused Credits.................................................27
12.06 Performance Incentives/Credits.................................27
ARTICLE 13. PAYMENT SCHEDULE AND INVOICES...................................28
13.01 Fees...........................................................28
13.02 Time of Payment................................................28
13.03 Fee Dispute....................................................28
ARTICLE 14. DISPUTE RESOLUTION..............................................28
ARTICLE 15. TAXES...........................................................29
ARTICLE 16. AUDITS..........................................................30
16.01 Processing.....................................................30
16.02 Charges........................................................31
ARTICLE 17. CONFIDENTIALITY.................................................32
17.01 General Obligations............................................32
17.02 Unauthorized Acts..............................................33
17.03 Remedy.........................................................34
ARTICLE 18. INSURANCE.......................................................35
ARTICLE 19. REPRESENTATION AND WARRANTIES...................................36
19.01 By AMEX........................................................36
19.02 By Vendor......................................................37
ARTICLE 20. TERMINATION.....................................................39
20.01 Termination for Change of Control/Business
of Vendor....................................................39
20.02 Termination for Cause..........................................40
20.03 Termination for Insolvency.....................................40
20.04 Other Terminations.............................................41
20.05 No Further Obligations.........................................42
ARTICLE 21. TERMINATION ASSISTANCE..........................................42
ARTICLE 22. EXIT PLAN.......................................................43
ARTICLE 23. INDEMNITIES AND DAMAGES.........................................44
23.01 Indemnity by AMEX..............................................44
23.02 Indemnity by Vendor............................................44
23.03 Indemnification Procedures.....................................45
23.04 Damages........................................................47
23.05 Remedies.......................................................48
ARTICLE 24. LOSS OF MATERIALS; UNAUTHORIZED ACTS............................48
24.01 Loss of Materials..............................................48
24.01 Unauthorized Acts..............................................49
ARTICLE 25. MISCELLANEOUS PROVISIONS........................................49
25.01 Assignment and Subcontracting..................................49
25.02 Notices........................................................50
25.03 Counterparts...................................................52
25.04 Headings/Exhibits..............................................52
25.05 Relationship...................................................52
25.06 Consents, Approvals and Requests...............................53
25.07 Severability...................................................53
25.08 Waiver.........................................................53
25.09 Publicity......................................................53
25.10 Entire Agreement...............................................54
25.11 Amendments.....................................................54
25.12 Survival.......................................................54
25.13 Third Party Beneficiaries......................................54
25.14 Governing Law..................................................55
25.15 Covenant of Further Assurances.................................55
25.16 Construction...................................................55
25.17 Interpretation of Documents....................................55
LIST OF EXHIBITS
Exhibit A Services
Exhibit B Performance Standards; Incentives/Credits
Exhibit C Security Requirements
Exhibit D Migration Plan
Exhibit E Compensation
Exhibit F Invoices
Exhibit G Subcontractors
1
This agreement (the "Agreement") is dated as of October 25,
1999 (the "Effective Date"), between American Express Travel Related Services
Company, Inc., a New York corporation, having its principal place of business at
American Express Tower, World Financial Center, New York, New York 10285
("AMEX") and Regulus West LLC, a Delaware limited liability company, having its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Vendor").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, AMEX and Vendor have engaged in extensive
negotiations and discussions that have culminated in the formation of the
relationship described in this Agreement; and
WHEREAS, Vendor desires to provide to AMEX, and AMEX desires
to obtain from Vendor, remittance processing and other related services
described in this Agreement on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, for and in consideration of the agreements of
the parties set forth below, AMEX and Vendor agree as follows:
2
ARTICLE 1. DEFINITIONS.
The following defined terms shall have the meanings specified
in the portion of this Agreement indicated below:
TERM DEFINED IN
---- ----------
Agreement Heading
AMEX Heading
AMEX Competitor Section 7.03
AMEX Data Section 10.01
Claim Section 23.03
Confidential Information Section 17.01
Confidentiality Agreement Section 8.04
Continuous Improvement Program Section 6.04
Contract Year Section 2.01
Developed Materials Section 9.03
Disaster Section 11.01
DRP Section 11.01
Effective Date Heading
Federal Funds Rate Section 3.04
Fees Section 13.01
[***] Section 3.04
Force Majeure Event Section 11.02
Implementation Manager Section 8.01
Indemnified Party Section 23.03
Indemnifying Party Section 23.03
Marks Section 9.04
Migration Completion Date Section 3.03
3
Migration Plan Section 3.01
Migration Services Section 3.01
New Services Section 5.01
Non-Disclosure Agreement Section 8.04
Rates Section 12.01
Reassignment Waiver Section 8.01
Renewal Term Section 2.02
Reports Section 4.08
Service Levels Section 6.01
Services Section 4.01
Software Section 9.02
Taxes Article 15
Term Section 2.01
Termination Assistance Period Article 21
Termination Assistance Services Article 21
Vendor Heading
Vendor Key Manager Section 8.01
Vendor Project Manager Section 8.01
Vendor Service Location Section 3.01
Vendor Software Section 9.01
4
ARTICLE 2. TERM OF AGREEMENT.
2.01 Term. The initial term of this Agreement shall commence
on the Effective Date and shall continue until 12:00 midnight on October 24,
2001, unless terminated earlier pursuant to Article 20 (the "Term"). (Each
12-month period commencing on the Effective Date or any anniversary of the
Effective Date during the Term or any Renewal Term, a "Contract Year".)
2.02 Expiration and Renewal. Unless terminated earlier
pursuant to Article 20 and provided AMEX is not in default of its obligations
under this Agreement, AMEX may renew this Agreement for [***] consecutive [***]
year terms (each such two year term, a "Renewal Term") upon at least [***] days'
notice to Vendor prior to the expiration of the Term or a Renewal Term. If AMEX
elects to renew this Agreement, this Agreement shall renew in accordance with
the then current terms and conditions, subject to any Rate adjustments pursuant
to Section 12.02. If AMEX does not provide Vendor with notice pursuant to this
Section 2.02 of its desire to renew this Agreement, this Agreement shall expire
as scheduled.
ARTICLE 3. MIGRATION.
3.01 Migration Plan. As part of the Services, commencing on
October 25, 1999, for the Vendor facility located in Los Angeles, California and
continuing until no later than the Migration Completion Date, Vendor shall
provide to AMEX the migration services (the "Migration Services") for
transferring
5
the remittance processing operations to the Vendor facilities located in Los
Angeles, California (the "Vendor Service Location") in accordance with the
Migration Plan mutually agreed upon by Vendor and AMEX and set forth in Exhibit
D (the "Migration Plan"), including the performance of all functions and
services within Vendor's control necessary to accomplish the migration to Vendor
without causing a material disruption of AMEX's remittance processing
operations. Vendor will notify AMEX immediately of any factors of which Vendor
becomes aware which may cause a delay in the Migration Plan. Vendor shall
consult with AMEX on a regular basis, at AMEX's request, to review the status of
the migration until completion of the Migration Plan. Vendor shall be
responsible for satisfying the testing and other criteria set forth in Exhibit
D.
3.02 Extensions to the Migration Plan. In the event the
Migration Plan for a Vendor Service Location is extended for more than [***]
days as a result of delays caused by Vendor for reasons within Vendor's control,
unless otherwise agreed upon by the Parties, Vendor shall pay to AMEX the
credits specified in Exhibit D.
3.03 Migration Completion. Vendor shall complete the migration
no later than March 30, 2000, for the Vendor Service Location (the "Migration
Completion Date"). AMEX shall reasonably determine if and when Vendor has
completed migration in accordance with the standards set forth in Exhibit D.
AMEX may terminate this Agreement without regard to Section 20.02 if
6
the migration is not being materially completed in accordance with the Migration
Plan, provided Vendor is principally responsible for such failure.
3.04 Alternate Source. In the event the migration is not
achieved by a Migration Completion Date due to delays caused by Vendor for
reasons within Vendor's control, AMEX may (a) terminate this Agreement, upon
notice to Vendor, within [***] days after such failure to meet a Migration
Completion Date, without regard to Section 20.02 and (b) procure an alternate
source by which to migrate AMEX's remittance processing operations to the
location of such alternate source. Notwithstanding the prior sentence, Vendor
shall reimburse AMEX for [***] and all [***] expenses incurred in transferring
the Services to another vendor or to itself. For the purpose of this Agreement,
[***] shall be determined as follows: (Number of days of remittance processing
delay as a result of cause(s) within Vendor's control X [***]) X (([***] +
[***]%)/365), where the [***] means the [***] as such rate [***] under the
heading [***] for the date on which the event giving rise to the delay occurred
or, if not so made available by [***]:00 p.m., New York City time on such date,
the [***] will be the rate for such date made
7
available and subsequently published in [***] under the heading [***].
ARTICLE 4. SERVICES.
4.01 Services. As of the Effective Date and continuing
throughout the Term and any Renewal Term, Vendor shall provide remittance
processing and related services to AMEX as AMEX requires as described in the
Procedures Manual attached as Exhibit A and otherwise identified in this
Agreement and as AMEX and Vendor may mutually agree (the "Services"). The
performance of the Services shall be subject to the security requirements set
forth in Exhibit C. AMEX reserves the right to perform for itself or to have a
third party perform any of the Services.
4.02 Systems. As part of the Services, Vendor shall be
responsible for Vendor's systems, including remittance processing systems,
interfacing with AMEX's systems. If, prior to or during migration, such systems
are incompatible, Vendor shall pay all costs necessary to make such systems
compatible. If, after migration, such systems become incompatible and AMEX has
made changes to its systems, AMEX will pay the reasonable costs necessary to
make such systems compatible to the extent that its systems changes caused such
incompatibility. If Vendor and AMEX are not able to agree on the reasonableness
of such costs, AMEX or Vendor may terminate this Agreement.
AMEX shall provide the required telecommunication circuits and
data circuit termination equipment to be connected
8
to data carrier equipment located at Vendor's site and any special cables
associated with data carrier equipment in order to provide connectivity access
to AMEX systems for transaction processing and file exchanges. AMEX shall test
and approve connectivity and interfaces to the reasonable satisfaction of Vendor
and AMEX. AMEX and Vendor shall agree upon the parameters for such testing and
upon the minimum acceptable results.
4.03 Licenses and Permits. As part of the Services, Vendor is
responsible for obtaining all necessary licenses and permits required by law or
regulation to perform the Services and has financial responsibility for all fees
and costs associated with such licenses and permits, including those required by
law or regulation relating to data protection in respect of Vendor's
responsibilities under this Agreement.
4.04 Changes in Law and Regulations. As part of the Services,
Vendor shall use commercially reasonable efforts to identify the impact of
changes in applicable legislative enactments on its ability to deliver the
Services. Vendor shall notify AMEX of such changes and shall work with AMEX to
identify the impact of such changes on how AMEX uses the Services. AMEX and
Vendor shall make any resulting modifications to the Services in accordance with
such changes. Vendor shall be responsible for any fines and penalties arising
from any noncompliance by Vendor with the laws in respect of its delivery of the
Services. Vendor shall perform the Services at the specified Service Levels
regardless of changes in legislative enactments, provided such
9
performance does not require Vendor to violate applicable law. If such changes
require Vendor to modify its performance of the Services, AMEX and Vendor shall
agree upon a period of time for Vendor to become compliant with the
requirement(s) of such changes. If such changes prevent Vendor's performance,
AMEX and Vendor shall arrange a reasonable solution which, as close as
practicable, implements the intent of this Agreement. If such changes,
including, without limitation, the imposition of any new taxes, affect Vendor's
cost for providing the Services, the parties shall agree upon an adjustment of
the Rates to reflect the impact of such changes.
4.05 Vendor Acknowledgement. Vendor acknowledges that AMEX may
use multiple vendors, including competitors of Vendor, to provide remittance
processing and related services in connection with AMEX's remittance processing
operations. Vendor shall cooperate with AMEX and any such other vendors to the
extent reasonably required by AMEX including, but not limited to, sharing
information concerning AMEX's remittance processing requirements and procedures;
provided, however, that in so cooperating, Vendor shall not be required to take
or forebear from taking any action that would compromise or adversely affect the
confidentiality of Vendor's systems and related components, data or other
information or property. AMEX may select any financial institution(s) for the
clearing of AMEX check deposits. Vendor shall cooperate with such institution(s)
to assure timeliness and quality of deposits.
10
4.06 Accuracy of Data. As part of the Services, Vendor shall
be responsible for the accuracy and completeness of the transmission data and
information submitted by Vendor to AMEX and any errors in and with respect to
transmission data and information submitted to AMEX. Upon notice or discovery,
Vendor shall correct as soon as is reasonably possible any errors or
inaccuracies in the data or information prepared by Vendor and submitted to
AMEX.
4.07 Correction of Errors. As part of the Services, Vendor
shall correct as soon as is reasonably possible any errors or inaccuracies in
the AMEX Data. AMEX shall be responsible for (1) the accuracy and completeness
of the AMEX Data submitted by AMEX to Vendor and (2) any errors in and with
respect to data obtained from Vendor because of any inaccurate or incomplete
AMEX Data.
4.08 Reports. As part of the Services, Vendor shall provide
management and production reports and performance and other reports to AMEX in a
form agreed upon by AMEX and Vendor as set forth in Exhibit A (the "Reports").
Vendor shall provide AMEX with such documentation and information as may be
reasonably requested by AMEX from time to time in order to verify the accuracy
of the Reports.
ARTICLE 5. NEW SERVICES.
5.01 New Services. AMEX may from time to time, desire to
expand the scope of the Services in terms of the type of
11
services to be performed under this Agreement (the "New Services"). At such time
as AMEX and Vendor agree on the obligations of Vendor and the prices therefor in
connection with such New Services, AMEX and Vendor shall amend this Agreement
and the Exhibits accordingly.
5.02 Third Party Services. Notwithstanding any request made to
Vendor by AMEX pursuant to Section 5.01, AMEX shall have the right to contract
with a third party to perform any New Service. In the event AMEX contracts with
a third party to perform any New Service, Vendor shall cooperate with AMEX and
any such third party to the extent reasonably required by AMEX, including by
providing: (1) written requirements, standards and policies for AMEX's
remittance processing operations so that the enhancements or developments of
such third party may be operated by Vendor, (2) assistance and support services
to such third party with respect to any New Service at rates to be negotiated if
appropriate and (3) third party access to the Vendor Service Location as may be
reasonably required by such third party in connection with such New Service.
AMEX shall require such third party to comply with Vendor's reasonable
requirements regarding operations, confidentiality and security. AMEX or such
third party shall bear the cost of Vendor's interaction with such third party,
if any.
12
ARTICLE 6. SERVICE LEVELS.
6.01 Service Levels. Vendor shall provide the Services in
accordance with the performance standards set forth in Exhibit B (collectively,
the "Service Levels").
6.02 Service Levels During Migration. Vendor shall maintain
(and use [***] to improve to the extent contemplated by this Agreement) the
service levels set forth in Exhibit B during migration.
[***]
6.04 Continuous Improvement Program. As part of the Services,
Vendor shall establish and implement a continuous improvement program for
quality, cost and delivery of the Services to determine whether these factors
are best of breed (the "Continuous Improvement Program"). Vendor, as part of the
Services, shall develop an analysis of such Continuous Improvement Program
results and a plan for reaching any higher level of service or better price
performance identified by the Continuous Improvement Program. Vendor will
include in its Continuous Improvement Program items as reasonably requested by
AMEX from time to time.
6.05 Root-Cause Analysis and Resolution. Within [***] days of
receipt of a written notice from AMEX in respect of (1) Vendor's [***] failure
to provide the Services or (2) Vendor's
13
repeated failure to provide any of the Services in accordance with the Service
Levels, Vendor shall (a) perform a root-cause analysis to identify the cause of
such failure and (b) provide AMEX with a report detailing the cause of, and
procedure for correcting, such failure. Within [***] days of receipt of such
notice, Vendor shall (i) commence implementation of action to remedy such
failure and (ii) provide AMEX with reasonable evidence that such failure will
not reoccur. The effectiveness of such remedial action must be evident to AMEX
within [***] days of its implementation. If the root-cause analysis shows that
the failure was caused by AMEX, then Vendor shall not be in breach of this
Agreement or liable to AMEX for performance credits as a result thereof.
ARTICLE 7. SERVICE LOCATION.
7.01 Location of Services. The Services shall be performed by
Vendor at a Vendor Service Location. If Vendor wishes to move a Vendor Service
Location for performance of the Services, to add any additional Vendor facility
as a Vendor Service Location and/or to shift processing of AMEX remittances from
one Vendor Service Location to another, it must obtain AMEX's prior written
consent. Vendor shall bear all costs of migrating the Services to a new Vendor
Service Location, unless such migration is requested by AMEX. Unless such
migration is requested by AMEX, Vendor shall reimburse AMEX for Float Loss and
all expenses incurred (including the cost of establishing an AMEX
14
systems interface with a new Vendor Service Location) in connection with such
migration.
7.02 Safety and Security Procedures. As part of the Services,
Vendor shall maintain and enforce at each Vendor Service Location safety and
security procedures, including the safety and security procedures described in
Exhibit C, that are at least comparable to industry standards for such Vendor
Service Location. The safety and security procedures for AMEX's remittance
processing operations shall protect the documents, data and information of AMEX
and its customers from unauthorized access. If AMEX requests that Vendor
implement or maintain safety and security procedures in addition to those
described in this Section 7.02 and in Exhibit C, Vendor shall implement or
maintain such procedures. Vendor and AMEX shall agree on the charges, if any,
for any such additional security procedures and the allocation of such charges
between the Parties. If Vendor and AMEX are not able to agree on the
reasonableness or allocation of such charges, AMEX or Vendor may terminate this
Agreement.
7.03 Security Relating to Major Competitors. "AMEX Competitor"
is defined as any person, firm or enterprise conducting [***]. In the event that
Vendor wishes to share resources it uses to provide the Services to AMEX with
services it provides to an AMEX Competitor,
15
Vendor shall obtain AMEX's prior written consent. AMEX may require reasonable
modifications to the safety and security procedures, including physical
separation of AMEX's remittance processing operations from those of the AMEX
Competitor. Vendor shall bear any costs associated with modifications to the
safety and security procedures due to such sharing.
ARTICLE 8. PROJECT TEAM.
8.01 Vendor Key Managers. Vendor shall appoint an individual
who shall be in charge of implementing the Services at all Vendor Service
Locations (the "Implementation Manager"). Vendor shall appoint an individual who
shall serve as the ongoing point of contact for AMEX for all issues relating to
the Services and/or this Agreement (the "Vendor Project Manager"). Vendor shall
replace each such individual when required or permitted pursuant to this Section
8.01 (the Implementation Manager and the Vendor Project Manager may be referred
to individually as a "Vendor Key Manager" and collectively as the "Vendor Key
Managers"). Vendor's appointment of a Vendor Key Manager shall be subject to
AMEX's reasonable consent. Within 15 days of the Effective Date, Vendor shall
identify the Vendor Key Managers and where each such Vendor Key Manager will be
located. Vendor shall not reassign or replace any Vendor Key Manager during the
first year of his or her assignment as a Vendor Key Manager unless (1) AMEX
reasonably consents to such reassignment or replacement or (2) the Vendor Key
Manager (a) voluntarily resigns from
16
Vendor, (b) is dismissed by Vendor for (i) misconduct (e.g., fraud, drug abuse,
theft) or (ii) materially failing to perform his or her duties and
responsibilities pursuant to this Agreement in Vendor's reasonable judgment or
(c) is unable to work due to his or her death or disability. In the event that
AMEX notifies Vendor that AMEX wishes Vendor to replace a Vendor Key Manager,
AMEX and Vendor shall meet to attempt to resolve AMEX's concerns. If AMEX and
Vendor are not able to resolve AMEX's concerns within [***] days (or such other
time period as the parties may agree) after AMEX notifies Vendor that AMEX
wishes to replace a Vendor Key Manager, Vendor shall replace the Vendor Key
Manager with an individual reasonably acceptable to AMEX.
8.02 Subcontractors. Vendor may not subcontract any of the
Services without AMEX's written consent, which consent may be given or withheld
for any reason in AMEX's sole discretion. AMEX agrees to respond within a
reasonable period of time to a request by Vendor for such consent. The consent
of AMEX to any subcontracting of the Services shall not relieve Vendor of its
responsibility for the performance of its obligations under this Agreement.
Vendor shall remain fully responsible for any obligations subcontracted and
shall be solely responsible for payments due such subcontractors. Vendor has
disclosed those subcontractors for the performance of its Services as of the
Effective Date and listed in Exhibit G and AMEX hereby consents thereto.
17
8.03 Non-Competition. Vendor acknowledges that the Services
performed for AMEX may relate to past, present or future strategies, plans,
business activities, methods, processes and information which afford AMEX
certain competitive or strategic advantages. To further ensure the protection of
AMEX's interests, Vendor agrees to use its best efforts during the Term and any
Renewal Term to not assign or utilize any Vendor Key Manager assigned to perform
the Services for AMEX to perform services for or in support of any AMEX
Competitor. If there is any doubt whether any person, firm or enterprise is
deemed an AMEX Competitor, Vendor shall obtain AMEX's determination, which
decision shall be reasonably made and deemed final and controlling for all
purposes hereunder. In addition, if Vendor does provide services for any AMEX
Competitor, Vendor will do so in a manner which will avoid any possibility that
any proprietary or confidential information of AMEX will be exposed to or used
for the benefit of any such AMEX Competitor.
8.04 Non-Disclosure Agreement. Vendor shall, in advance,
require each Vendor employee, subcontractor, agent or representative assigned to
perform the Services and each Vendor employee, subcontractor, agent or
representative who obtains or is in a position to obtain any AMEX information or
materials required by the terms of this Agreement to be kept confidential, to
execute a confidentiality agreement in the form set forth in Exhibit C (a
"Confidentiality Agreement") or a non-disclosure agreement in the form set forth
in Exhibit C (a "Non-Disclosure
18
Agreement"), as applicable. Prior to any subcontractor performing the Services,
Vendor shall provide AMEX with a signed copy of such Non-Disclosure Agreement.
Upon AMEX's request, Vendor shall provide AMEX with a signed copy of each such
Confidentiality Agreement for Vendor employees, agents or representatives.
Vendor further agrees to take any other steps reasonably required or appropriate
to ensure compliance with the obligations set forth in this Section 8.04. AMEX
shall be a third party beneficiary of any such Confidentiality Agreement and
Non-Disclosure Agreement.
ARTICLE 9. SOFTWARE AND PROPRIETARY RIGHTS.
9.01 Vendor Software. All software and related documentation
(1) (a) owned by Vendor or its affiliates prior to the Effective Date or of
which Vendor or its affiliates acquire ownership of after the Effective Date,
which is used in connection with the Services and (b) developed by Vendor after
the Effective Date which is not Developed Materials, and (2) licensed or leased
from a third party by Vendor prior to or after the Effective Date which will be
used in connection with the Services ((1) and (2) collectively, the "Vendor
Software") is, or will be, and shall remain, the exclusive property of Vendor or
its third-party licensor and AMEX shall have no rights or interests to the
Vendor Software except as described in this Section 9.01. Vendor shall use the
Vendor Software to provide the Services to AMEX during the Term for use in
connection with
19
the Services at no additional cost to AMEX other than as expressly provided in
this Agreement.
9.02 Changes and Upgrades to Hardware or Software. Vendor
shall work with AMEX to plan the development, testing and implementation
scheduling of all changes Vendor proposes to make to its hardware or to the
Developed Materials and Vendor Software (collectively, the "Software"). Vendor
shall notify AMEX at least [***] days in advance of any such material changes
or, in the case of any urgent and unplanned changes, as soon as practicable.
Unless it gives prior written notice to AMEX, Vendor shall not make any changes
or modifications to its hardware or the Vendor Software that would adversely
alter the functionality of the hardware or the Vendor Software, degrade the
performance of the hardware or the Vendor Software or, without AMEX's prior
written consent, affect the day-to-day operations of AMEX's business. Vendor
agrees to, or to provide AMEX systems access and time to, test any proposed
material changes on AMEX's documents and/or information prior to implementation
thereof at AMEX's request. AMEX shall determine in its reasonable discretion
when such testing has been satisfactorily completed. If AMEX approves such a
change, AMEX and Vendor shall agree upon a mutually acceptable date for
implementation thereof. In addition, Vendor shall pay the cost of any
modification or enhancement to, or substitution for, the Developed Materials and
any other resources or software used in connection with the Services
necessitated by (1) unauthorized changes to the Developed Materials or (2)
changes to
20
the hardware or the Vendor Software (except as AMEX may request for its
exclusive use, for which AMEX shall bear such costs, or as may result from the
implementation of a New Service) or the operating environment of the Vendor
Software. In the event that Vendor implements any material changes without
informing AMEX thereof and such changes cause AMEX to incur any additional costs
or expenses, Vendor shall [***] therefor.
9.03 AMEX Rights. All inventions, methods, techniques, works
of authorship, computer software, computer screens, reports, data, training
materials, curriculum or any other materials made, created, developed, upon
mutual agreement written exclusively for use by AMEX and paid for by AMEX,
conceived or first reduced to practice in the course of, arising out of, or as a
result of Services performed under this Agreement and related to the financial
services industry and not of general applicability in the remittance processing
industry (the "Developed Materials") shall be the sole and exclusive property of
AMEX. Vendor hereby irrevocably assigns to AMEX all its right, title and
interest in and to the property described in the preceding sentence and will
execute any and all documents necessary to transfer and/or evidence AMEX's
ownership rights.
9.04 AMEX Marks. AMEX owns and shall remain the sole and
exclusive owner of all right, title and interest in and to the AMERICAN EXPRESS
name, trademarks, service marks, trade names, and the goodwill associated
therewith (the "Marks") and Vendor agrees that any and all use of the Marks by
Vendor shall
21
inure solely to the benefit of AMEX. Vendor is not granted any right or license
to, and shall not use, the Marks in any manner for any purpose except as may be
agreed in advance between Vendor and AMEX.
ARTICLE 10. DATA AND REPORTS.
10.01 Ownership of AMEX Data. All data and information
submitted to Vendor by AMEX in connection with the Services (the "AMEX Data") is
and shall remain the property of AMEX. The AMEX Data shall not be (1) used by
Vendor other than in connection with providing the Services, (2) disclosed,
sold, assigned, leased or otherwise provided to third parties by Vendor or (3)
commercially exploited by or on behalf of Vendor, its employees or agents.
Vendor will take all commercially reasonable actions to safeguard the AMEX data.
10.02 Return of Data. Upon request by AMEX at any time, Vendor
shall (1) promptly return to AMEX, in a format agreed upon by the Parties and on
the media requested by AMEX, all AMEX Data and (2) erase or destroy under the
supervision of AMEX all AMEX Data in Vendor's possession.
ARTICLE 11. CONTINUED PROVISION OF SERVICES.
11.01 Disaster Recovery Plan. As part of the Services, Vendor
shall (1) develop and submit to AMEX for AMEX's approval a disaster recovery
plan (the "DRP") within [***] days of the Effective Date that meets or exceeds
the requirements set
22
forth in Exhibit C, (2) periodically update and test the operability of the DRP
in effect at that time, (3) upon AMEX's request, certify to AMEX that the DRP is
fully operational at least [***] and (4) immediately provide AMEX with notice of
a disaster and implement the DRP upon the occurrence of a disaster at the Vendor
Service Location or otherwise affecting the provisions or receipt of the
Services (a "Disaster"). Vendor shall use commercially reasonable efforts to
reinstitute the Services within [***] hours of the occurrence of a Disaster but,
in any event, shall reinstitute the Services within [***] hours of each
occurrence. During such [***] hour period, Vendor shall be relieved from
performing in accordance with the Service Levels. In the event Vendor provides
the Services from a business recovery center for more than [***] days, AMEX may
terminate this Agreement for cause upon notice to Vendor and without regard to
Section 20.02. In the event of a Disaster, Vendor shall not increase its charges
under this Agreement or charge AMEX usage fees or costs in addition to the Fees.
11.02 Force Majeure. Neither AMEX nor Vendor shall be liable
for any delay in the performance of its obligations pursuant to this Agreement
(1) provided that such delay (a) could not have been prevented by reasonable
precautions and (b) cannot reasonably be circumvented by the non-performing
party through the use of alternate sources, work-around plans or other means and
(2) if and to the extent such delay is caused, directly or indirectly, by fire,
flood, earthquake, elements of nature or
23
acts of God, acts of war, terrorism, riots, strikes, civil disorders, rebellions
or revolutions, or any other similar cause beyond the reasonable control of such
party (each, a "Force Majeure Event"). Upon the occurrence of a Force Majeure
Event, the non-performing party shall be excused from any further performance of
its obligations pursuant to this Agreement (other than Vendor's obligation to
provide either normal recovery procedures or any other Disaster Recovery
Services as described in Section 11.01) affected by the Force Majeure Event
(including being relieved of the applicable Service Level requirements) for as
long as (a) such Force Majeure Event continues and (b) such party continues to
use best efforts to recommence performance whenever and to whatever extent
possible without delay; provided, however, that Vendor shall be relieved of the
Service Level requirements for no longer than [***] days from the occurrence of
such Force Majeure Event. The party delayed by a Force Majeure Event to such
party shall immediately notify the other party of the occurrence of a Force
Majeure Event and describe in reasonable detail the nature of the Force Majeure
Event. If any Force Majeure Event prevents or delays Vendor's delivery of the
Services for more than [***] hours, AMEX may terminate this Agreement as of the
date specified by AMEX without regard to Section 20.02. The occurrence of a
Force Majeure Event in respect of another customer of Vendor shall not
constitute a Force Majeure Event under this Agreement.
24
11.03 Allocation of Resources. Whenever a Force Majeure Event
or a Disaster causes Vendor to allocate limited resources between or among
Vendor's customers and affiliates, AMEX shall receive priority. Any decision to
relocate the Services from the Vendor Service Location to another location will
be made jointly by AMEX and Vendor in order to minimize Float Loss.
ARTICLE 12. PAYMENTS TO VENDOR.
12.01 Fees. In consideration of Vendor providing the Services,
AMEX shall pay to Vendor fees (the "Fees") based on the rates set forth in
Exhibit E (the "Rates"). The Fees shall be computed by multiplying [***] by AMEX
by the applicable Rates. AMEX shall not pay any other compensation or reimburse
any expenses to Vendor under this Agreement except as agreed upon by the
parties. For the purposes of this Agreement, "as part of the Services" means
that Vendor is not entitled to any payments from AMEX in addition to the Fees
for the applicable Services (except as may be otherwise provided herein), but
does not mean or imply that AMEX does not have other financial responsibility
for the Services to the extent specified in this Agreement.
12.02 Rate Adjustments. For the first Contract Year of the
first Renewal Term, if any, Vendor may increase the Rates by no more than [***].
25
For each subsequent Contract Year of any Renewal Term, Vendor may increase the
Rates by no more than [***]. If such index shall cease to be published, the
parties shall agree upon a substitute index similarly reflecting [***]. Vendor
shall notify AMEX of any increase in Rates [***] days in advance of the
effective date of such increase.
12.03 Expenses. Except as expressly set forth in this
Agreement, any expenses related to the Services are included in the Fees and
shall not be reimbursed by AMEX unless agreed to by AMEX in writing.
12.04 Rights of Set-Off. With respect to any amount which AMEX
and Vendor mutually determine (1) should be reimbursed to AMEX or (2) is
otherwise payable to AMEX by Vendor pursuant to this Agreement, AMEX may upon
written notice to Vendor deduct the entire amount owed against the charges
otherwise payable or expenses owed to Vendor under this Agreement until such
time as the entire amount owed to AMEX has been paid.
12.05 Unused Credits. Any unused credits against future
payments issued to AMEX by Vendor pursuant to this
26
Agreement shall be paid to AMEX by Vendor within 30 days of the expiration of
this Agreement or termination of this Agreement for any reason.
12.06 Performance Incentives/Credits. In addition to the
compensation specified in Section 12.01, AMEX shall make performance incentive
payments to or receive performance credits from Vendor as provided in Section
6.03. Any credits issued to AMEX pursuant to Exhibit D shall be paid to AMEX by
Vendor within [***] days of the date of the performance giving rise to the
credit.
ARTICLE 13. PAYMENT SCHEDULE AND INVOICES.
13.01 Fees. Vendor shall invoice AMEX monthly for the Fees.
Vendor shall provide AMEX with such monthly Fees invoice no later than 15
business days following the month in which the Vendor provided the Services. The
monthly invoice shall include all monthly Fees, plus incentive payments or less
performance credits and shall be accompanied by supporting documentation in the
format agreed upon by AMEX and Vendor and set forth in Exhibit F.
13.02 Time of Payment. Any sum due Vendor pursuant to this
Agreement for which payment is not otherwise specified herein shall be due and
payable 30 days after receipt by AMEX of an invoice from Vendor.
13.03 Fee Dispute. Each of AMEX and Vendor acknowledge that
the provision of the Services is critical to the business and operations of
AMEX. Accordingly, in the event of a
27
good faith dispute between AMEX and Vendor regarding this Agreement pursuant to
which AMEX in good faith believes it is entitled to withhold payment, AMEX may
withhold payment only of the disputed amount during the pendency of such
dispute, Vendor shall continue to provide the Services.
ARTICLE 14. DISPUTE RESOLUTION.
In the event of a dispute between AMEX and Vendor involving
any matter with respect to the Services or this Agreement, including without
limitation any dispute regarding Fees or costs, which can not be resolved
informally, upon the written request of one party to the other each party will
designate an appropriate representative to undertake the review and resolution
of the dispute. The representatives shall promptly in good faith and with all
due diligence negotiate to resolve the dispute within [***] days after the
receiving party's receipt of the written request. If either or both of the
representatives conclude that they are unable to agree on an appropriate
resolution of the dispute within such [***] day period, they shall escalate the
dispute to the next highest level of management for review and resolution. If
necessary, this process shall be repeated through the highest level of
management of the parties. This Article 14 shall not apply to [***].
28
ARTICLE 15. TAXES.
AMEX shall pay, or reimburse [***] Vendor, for all Taxes
imposed in connection with Vendor's provision of the Services, excluding taxes
based upon Vendor's gross or net income. Vendor has advised AMEX that, as of the
Effective Date, there are no Taxes applicable in connection with Vendor's
provision of the Services. AMEX and Vendor shall also cooperate to segregate the
fees payable under this Agreement into the following separate payment streams:
(1) those for taxable Services, (2) those for nontaxable Services, (3) those for
which a sales, use or similar tax has already been paid by Vendor and (4) those
for which Vendor functions merely as a paying agent for AMEX in receiving goods,
supplies or services (including leasing and licensing arrangements) that
otherwise are nontaxable or have previously been subject to tax. For purposes of
this Article 15, "Taxes" shall mean all sales, use, transfer, ad valorem, gross
receipts or excise taxes and any other similar taxes, fees, duties or imposts
plus any interest and penalties imposed thereon and all expenses incurred by
Vendor in connection with the payment or settlement of or defense against any
claim for such taxes.
29
ARTICLE 16. AUDITS.
16.01 Processing. Upon reasonable advance written notice from
AMEX, Vendor shall provide such auditors and inspectors as AMEX or any
regulatory authority may, from time to time, designate with unrestricted access
to the Vendor Service Location during its normal operational hours for the
purpose of performing, at AMEX's expense, audits or inspections of the business
of AMEX at the Vendor Service Location, including any audits, internal reviews
or other records relating to Services provided to AMEX. Vendor shall provide
such auditors and inspectors any assistance that they may reasonably require. If
any audit by an auditor designated by AMEX or a regulatory authority having
jurisdiction over AMEX or Vendor results in Vendor being notified that it is not
in compliance with any relevant and generally accepted accounting principle or
regulatory or other audit requirement relating to the Services, Vendor shall,
within the period of time specified by such auditor or regulatory authority,
comply with such audit or regulatory authority. All changes shall be made at
Vendor's expense.
16.02 Charges. Upon at least [***] business days' notice from
AMEX, Vendor shall provide AMEX or its designated representatives with access to
all of the financial records and supporting documentation in respect of its
charges to AMEX. If, as a result of such audit, AMEX determines that Vendor has
overcharged AMEX, Vendor shall credit the next invoice to AMEX in the amount of
the overcharge, plus interest at the [***] Rate + [***]%, calculated from the
date of receipt by Vendor of the
30
overcharged amount until the date of payment to AMEX. If, as a result of such
audit, AMEX determines that Vendor has undercharged AMEX, Vendor shall increase
the next invoice to AMEX by the amount of the undercharge. In the event any such
audit reveals an overcharge to AMEX of $[***] or more, Vendor shall reimburse
AMEX for the cost of such audit. In the event that overcharges of $[***] or more
are identified more than [***], AMEX may terminate this Agreement for cause.
ARTICLE 17. CONFIDENTIALITY.
17.01 General Obligations. All Confidential Information shall
be held in confidence by the parties to the same extent and in at least the same
manner as the parties protect their own confidential or proprietary information
and, with respect to AMEX Confidential Information only, as recommended as a
result of any facility audits or reviews of Vendor Service Location. As used in
this Agreement, the term "Confidential Information" shall mean all information,
data (including, with respect to AMEX, AMEX Data) and materials relating to the
customers, business and affairs of a party provided to, disclosed, or received
by the other party from any source in connection with this Agreement or Vendor's
performance of the Services, and the terms of this Agreement. Neither party
shall disclose, publish, release, transfer or otherwise make available
Confidential Information of the other party in any form to, or for the use or
benefit of, any person or entity without
31
such party's consent. Each party, however, shall be permitted to disclose
relevant aspects of the other party's Confidential Information to its officers,
agents, subcontractors and employees and to the officers, agents, subcontractors
and employees of its corporate affiliates or subsidiaries to the extent that
such disclosure is reasonably necessary for the performance of its duties and
obligations under this Agreement; provided, that such party shall take all
reasonable measures to ensure that Confidential Information of the other party
is not disclosed or duplicated in contravention of the subcontractors'
provisions of this Agreement by such officers, agents, subcontractors and
employees. The obligations in this Section 17.01 shall not restrict any
disclosure by either party pursuant to any applicable law, or by order of any
court or government agency (provided that the disclosing party shall give prompt
notice to the non-disclosing party of such order) and shall not apply with
respect to information which (1) is developed by such party without violating
the other party's proprietary rights, (2) is or becomes publicly known (other
than through unauthorized disclosure), (3) is disclosed by the owner of such
Confidential Information to a third-party free of any obligation of
confidentiality, (4) is already known by such party without an obligation of
confidentiality other than pursuant to this Agreement or any confidentiality
agreements entered into before the Effective Date between AMEX and Vendor, or
(5) is rightfully received by a party free of any obligation of confidentiality.
32
17.02 Unauthorized Acts. Each party shall: (1) notify the
other party promptly of any material unauthorized possession, use or knowledge,
or attempt thereof, of the other party's Confidential Information by any person
or entity which may become known to such party, (2) promptly furnish to the
other party full details of the unauthorized possession, use or knowledge, or
attempt thereof, and use reasonable efforts to investigate and prevent the
recurrence of any unauthorized possession, use or knowledge, or attempt thereof,
of Confidential Information, (3) use reasonable efforts to cooperate with the
other party in any litigation and investigation against third parties deemed
necessary by the other party to protect its proprietary rights and (4) promptly
use all reasonable efforts to prevent a recurrence of any such unauthorized
possession, use or knowledge of Confidential Information. Each party shall bear
the cost it incurs as a result of compliance with this Section 17.02.
17.03 Remedy. Each party agrees that if a party, its officers,
employees or anyone obtaining access to the proprietary information of the other
party by, through or under them, breaches any provision of this Article 17, such
other party would suffer irreparable harm and the total amount of monetary
damages for any injury to such other party from any violation of this Article 17
would be impossible to calculate and would therefore be an inadequate remedy.
Accordingly, each party agrees that the other party shall be entitled to
temporary and permanent injunctive relief against the breaching party, its
officers,
33
agents or employees, and such other rights and remedies to which such other
party may be entitled to at law, in equity and under this Agreement for any
violation of this Article 17.
ARTICLE 18. INSURANCE.
Vendor shall maintain in force throughout the Term and any
Renewal Term an insurance policy or policies, equivalent to or better than (in
terms of amount of coverage and risks covered) the coverage listed below, which
coverage Vendor warrants is currently in force. Vendor has identified to AMEX
the insurance company or companies currently providing the coverages listed
below and the amount of the deductibles for such coverages and all of the
foregoing are satisfactory to AMEX. In the event that Vendor wishes to change
the insurance company or companies which provide any of the coverages listed
below, Vendor may do so without AMEX's consent, provided such company or
companies has a Best rating of at least "A". The amount of any increase in the
deductibles shall be subject to the prior approval of AMEX. Vendor agrees to add
AMEX to such policies (with the exception of the Crime Bond) as an additional
insured. Vendor agrees to provide certificates of insurance to AMEX prior to the
commencement of the Migration Services. All coverage listed below shall have an
endorsement providing that the insurance company or companies shall provide to
AMEX at least 30 days' prior written notice of any cancellation, modification or
34
alteration affecting the coverage. Coverage shall be provided as follows:
Commercial General Liability $[***] million per
(including contractual liability occurrence
and personal injury liability)
Commercial Automobile Liability $[***] million per
(covering owned, hired and occurrence
non-owned vehicles)
Workers Compensation [***]
All Risk Property (real and [***]
personal property full
replacement value; to include
Extra Expense and Business
Interruption coverage)
Blanket Crime Bond (covering $[***] million per
full-time and temporary employees; occurrence
to include loss or destruction
of remittances)
Errors and Omissions $[***] million per
occurrence
Transit [***]
ARTICLE 19. REPRESENTATIONS AND WARRANTIES.
19.01 By AMEX. AMEX represents and warrants that: (1) it is a
corporation duly incorporated, validly existing and in good standing under the
laws of New York, (2) it has all the requisite corporate power and authority
under its organizational documents and the laws of New York to execute, deliver
and perform its obligations under this Agreement, (3) the execution, delivery
and performance of this Agreement has been duly authorized by AMEX, (4) no
approval, authorization or consent of any governmental or regulatory authority
is required to be
35
obtained or made by it in order for it to enter into and perform its obligations
under this Agreement, (5) it shall comply with all applicable Federal, state and
local laws and regulations, and shall obtain all applicable permits and
licenses, in connection with its obligations under this Agreement, and (6) it
has not disclosed any Confidential Information of Vendor.
19.02 By Vendor. Vendor represents and warrants that: (1) it
is a limited liability company duly formed, validly existing and in good
standing under the laws of Delaware, (2) it has all requisite power and
authority under its organizational documents and the laws of Delaware to
execute, deliver and perform its obligations under this Agreement, (3) it is
duly licensed, authorized or qualified to do business and is in good standing in
every jurisdiction in which a license, authorization or qualification is
required for the ownership or leasing of its assets or the transaction of
business of the character transacted by it except where the failure to be so
licensed, authorized or qualified would not have a material adverse effect on
Vendor's ability to fulfill its obligations under this Agreement, (4) the
execution, delivery and performance of this Agreement has been duly authorized
by Vendor, (5) no approval, authorization or consent of any governmental or
regulatory authority is required to be obtained or made by it in order for it to
enter into and perform its obligations under this Agreement, (6) it shall comply
with all applicable Federal, state and local laws and regulations, including
without limitation the Bank Secrecy Act
36
and related statutes and Federal and state anti-money laundering statutes, and
shall obtain all applicable permits and licenses in connection with its
obligations under this Agreement, (7) it has not disclosed any Confidential
Information of AMEX, (8) all Services performed by Vendor for AMEX will be
performed at least in accordance with industry standards and practices
applicable to the performance of such Services, (9) it will maintain the
resources so as to meet the Service Levels, (10) the Services and the Developed
Materials (except for any AMEX Data or programs provided by AMEX) will not, and
the Vendor Software does not and will not, infringe upon the proprietary rights
of any third party, (11) the systems used by it internally to provide the
Services (excluding external support for such systems from third party sources
such as, for example, electric power from a utility company, but including third
party products forming a part of such internally used systems such as, for
example, BancTec and Wausau) have been tested, will continue to be subject to
commercially reasonably testing, and are capable of operating, without
generating materially erroneous results and without ceasing to function for a
material period of time, using data having date ranges spanning the twentieth
(20th) and twenty-first (21st) centuries (e.g., years 1900-2100), (12) it will
not breach or violate any agreements that Vendor has with subcontractors in
connection with this Agreement and (13) to the knowledge of Vendor, there is no
outstanding litigation, arbitrated matter or other dispute to which Vendor is a
party which, if decided
37
unfavorably to Vendor, would reasonably be expected to have a potential or
actual material adverse effect on AMEX's or Vendor's ability to fulfill their
respective obligations under this Agreement.
ARTICLE 20. TERMINATION.
20.01 Termination for Change of Control/Business of Vendor. In
the event (1) of a sale or distribution of all or substantially all of the
assets of Vendor or a sale or distribution of sufficient stock (other than
pursuant to a public offering) of Vendor to effect a change in control to any of
the AMEX Competitors or (2) that Vendor or its affiliates enters into the
business of [***] or provides a [***] to any of AMEX's [***], AMEX may terminate
this Agreement immediately. In the event of a sale or distribution of all or
substantially all of the assets of Vendor (other than to Vendor's parent, a
successor to Vendor's parent, or a wholly-owned subsidiary of Vendor for so long
as such subsidiary remains wholly-owned by Vendor) or a sale or distribution of
sufficient stock (other than pursuant to a public offering) of Vendor to effect
a change in control to an entity other than any of the AMEX Competitors, AMEX
may terminate this Agreement upon [***] days' written notice to Vendor given
within [***] days of AMEX's receipt of notice of such change of control or
activity.
38
20.02 Termination for Cause. Except as expressly provided
elsewhere in this Agreement or in the Exhibits, if either party [***] under this
Agreement, and such failure is not cured within [***] days [***], the
non-defaulting party may, upon further written notice to the defaulting party,
terminate this Agreement as of the date specified in such notice of termination.
20.03 Termination for Insolvency. Upon notice, either party
may terminate this Agreement with immediate effect: (1) upon the institution by
the other party of proceedings to be adjudicated a bankrupt or insolvent, or the
consent by the other party to institution of bankruptcy or insolvency
proceedings against it or the filing by the other party of a petition or answer
or consent seeking reorganization or release under the Federal Bankruptcy Act,
or any other applicable Federal or state law, or the consent by the other party
to the filing of any such petition or the appointment of a receiver, liquidator,
assignee, trustee, or other similar official of the other party or of any
substantial party of its property, or the making by the other party of an
assignment for the benefit of creditors, or the admission in writing by the
other party of its inability to pay its debts generally as they become due or
the taking of corporate action by the other party in furtherance of any such
action; or (2) if, within 60 days after the commencement of an action
39
against the other party seeking any bankruptcy, insolvency, reorganization,
liquidation, dissolution or similar relief under any present or future law or
regulation, such action shall not have been dismissed or all orders or
proceedings thereunder affecting the operations or the business of the other
party stayed, or if the stay of any such order or proceeding shall thereafter be
set aside; or if, within [***] days after the appointment without the consent or
acquiescence of the other party of any trustee, receiver or liquidator or
similar official of the other party, or of all or any substantial part of the
property of the other party, such appointment shall not have been vacated.
20.04 Other Terminations. This Agreement may terminate
pursuant to Section 3.03, Section 3.04, Section 4.02, Section 7.02, Section
11.01, Section 11.02, Section 16.02, Exhibit B, Exhibit C, Exhibit D and Exhibit
E.
20.05 No Further Obligations. Except as otherwise provided,
neither party shall have any further obligation or liability, financial or
otherwise, to the other except that AMEX will remain liable to pay Vendor for
Services rendered prior to the termination date.
ARTICLE 21. TERMINATION ASSISTANCE.
Upon the expiration of this Agreement or the termination of
this Agreement for any reason, other than [***], Vendor shall,
40
upon AMEX's request, for up to [***] days after the expiration of this Agreement
or termination of this Agreement for any reason (the "Termination Assistance
Period") (1) continue to provide the Services to the extent requested by AMEX at
the Rates and Service Levels for such Services in effect under this Agreement
immediately prior to such expiration or termination (e.g., except for [***] as
provided in Section 12.02, the applicable Rates will not [***] processing
volumes), unless expiration occurs at the end of the second Renewal Term, in
which case, the Parties shall agree upon the applicable Rates and Service Levels
and (2) provide such commercially reasonable assistance as required by AMEX to
transfer the Services to another vendor or to itself, including on-site
facilities for any AMEX personnel who may need to be present at a Vendor Service
Location to accomplish such a transfer (the "Termination Assistance Services").
During the Termination Assistance Period, Vendor shall continue to provide the
Services in accordance with the terms and conditions specified in this
Agreement, except as otherwise expressly provided herein. Vendor agrees to take
all [***] steps necessary for AMEX to transfer the Services to another vendor or
to itself. After the expiration of the Termination Assistance Period, Vendor
shall (a) answer questions regarding the Services on an "as needed" basis for
[***] days, (b) deliver to AMEX any remaining AMEX-owned reports and
documentation still in Vendor's possession and (c) at AMEX's direction, destroy
all AMEX Data and information in its
41
possession and provide to AMEX written confirmation thereof. Vendor shall
provide the Termination Assistance Services at [***] cost [***], except as
otherwise expressly provided in this Agreement.
ARTICLE 22. EXIT PLAN.
Upon the expiration of this Agreement or termination of this
Agreement for any reason, other than termination by Vendor pursuant to Section
20.02:
(1) Vendor shall provide the Termination Assistance Services in accordance
with Article 21;
(2) upon AMEX's request and within [***] days after the effective date of
expiration or termination of this Agreement, with respect to any
contracts applicable solely to services being provided to AMEX for
maintenance, disaster recovery services and other necessary third party
services being used by Vendor to perform the Services as of the
expiration or termination, Vendor shall use its [***] to transfer or
assign such agreements to AMEX or its designee, on terms and conditions
acceptable to both parties.
ARTICLE 23. INDEMNITIES AND DAMAGES.
23.01 Indemnity by AMEX. AMEX shall indemnify Vendor from, and
defend Vendor, its parent, and their respective employees, agents, and
affiliates, from and against, any
42
liability or expenses (including reasonable attorneys' fees, expert witness
fees, expenses, and costs of settlement) arising out of or relating to any claim
by a third party [***]. AMEX shall indemnify Vendor from any costs and expenses
incurred in connection with the enforcement of this Section 23.01.
23.02 Indemnity by Vendor. Vendor shall indemnify AMEX from,
and defend AMEX, its parent, and their respective employees, agents, and
affiliates, from and against any liability or expenses (including reasonable
attorneys' fees, expert witness fees, expenses, and costs of settlement) arising
out of or relating to any claim [***].
43
Vendor shall indemnify AMEX from any costs and expenses incurred in connection
with the enforcement of this Section 23.02.
23.03 Indemnification Procedures. If any civil, criminal,
administrative or investigative action or proceeding (each, a "Claim") is
commenced against any party entitled to indemnifications under Section 23.01 or
Section 23.02 (an "Indemnified Party"), written notice thereof shall be given to
the party that is obligated to provide indemnification (the "Indemnifying
Party") as promptly as practicable. After such written notice, if the
Indemnifying Party shall acknowledge in writing to such Indemnified Party that
this Agreement applies with respect to such Claim, then the Indemnifying Party
shall be entitled, if it so elects, in a notice delivered to the Indemnified
Party not less than 10 days prior to the date on which a response to such Claim
is due, to take control of the defense and investigation of such Claim and to
employ and engage attorneys of its choice to handle and defend the same, at the
Indemnifying Party's sole cost and expense. The Indemnified Party shall
cooperate in all reasonable respects with the Indemnifying Party and its
attorneys in the investigation, trial and defense of such Claim and any appeal
arising therefrom; provided, however, that the Indemnified Party may, at its own
44
cost and expense, participate, through its attorneys or otherwise, in such
investigation, trial and defense of such Claim and any appeal arising therefrom.
No settlement of a Claim that involves a remedy other than the payment of money
by the Indemnifying Party shall be entered into without the consent of the
Indemnified Party. After notice by the Indemnifying Party to the Indemnified
Party of its election to assume full control of the defense of any such Claim,
the Indemnifying Party shall not be liable to the Indemnified Party for any
legal expenses incurred thereafter by such Indemnified Party in connection with
the defense of that Claim. If the Indemnifying Party does not assume full
control over the defense of a Claim subject to such defense as provided in this
Section 23.03, the Indemnifying Party may participate in such defense, at its
sole cost and expense, and the Indemnified Party shall have the right to defend
the Claim in such manner as it may deem appropriate, at the cost and expense of
the Indemnifying Party.
23.04 Damages. (1) Vendor shall be liable to AMEX for any
damages arising out of or relating to its performance under this Agreement.
Notwithstanding anything herein, Vendor's liability [***] obligations shall be
limited to [***], provided that (a) Vendor shall remain responsible for payment
of [***] for such
45
damages, and (b) Vendor shall maintain all coverages provided in the foregoing
policies unless a certain coverage subsequently becomes uninsurable. Except as
provided in the previous sentence, Vendor shall not be liable for indirect,
special, incidental and consequential losses or damages (including loss of
income, profits or savings) experienced by AMEX as a result of the occurrence of
the risks described in Section 23.02. Notwithstanding anything herein, Vendor
shall not be liable to AMEX for damages in excess of $[***] during each of the
Term or any Renewal Term. Vendor shall not have any obligation to indemnify AMEX
against any claim, liability, loss, damage or expense AMEX, its parent, its
affiliates, or their respective employees or agents might suffer as a result of
and to the extent caused by the [***] performance by AMEX, its parent, its
affiliates, or their respective employees or agents of any of the obligations
called for by this Agreement. (2) In no event shall AMEX be liable for, nor will
the measure of damages against AMEX include, any indirect, incidental, special
or consequential damages or amounts for loss of income, profits or savings
arising out of or relating to its performance under this Agreement.
23.05 Remedies. The provisions of this Article 23 and of
Article 17 constitute the parties' sole and exclusive remedies under this
Agreement.
ARTICLE 24. LOSS OF MATERIALS; UNAUTHORIZED ACTS.
24.01 Loss of Materials. In the event of a material loss,
theft or other disappearance of any customer information,
46
data or materials that Vendor is responsible for or from Vendor's possession
(pursuant to this Agreement or any other agreement with Vendor's customers),
Vendor shall promptly notify AMEX, in which case AMEX may [***], including
without limitation arranging for security and processing oversight of all items
held by Vendor which are owned by AMEX or in which AMEX has a proprietary
interest. Vendor's notification does not require it to inform AMEX of Vendor's
customers' identity or other confidential information, but is designed to give
AMEX an understanding of the circumstances and magnitude of the loss.
24.02 Unauthorized Acts. In the event that any agent,
subcontractor or employee of Vendor is suspended by Vendor of engaging in or is
suspended, terminated or arrested for commission of fraud or any other criminal
activity or breach of fiduciary duty, Vendor shall promptly notify AMEX, in
which case AMEX may [***].
ARTICLE 25. MISCELLANEOUS PROVISIONS.
25.01 Assignment and Subcontracting. Vendor shall not, without
the consent of AMEX, which consent may be given or withheld for any reason in
AMEX's sole discretion (1) assign this Agreement or any amounts payable pursuant
to this Agreement other than to Vendor's parent, a successor to Vendor's parent,
or a wholly-owned subsidiary of Vendor for so long as such subsidiary
47
remains wholly-owned by Vendor or (2) subcontract the provision of any of the
Services (except as set forth in Section 8.02). The consent of AMEX to any
assignment or subcontracting shall not (a) with respect to subcontracting,
relieve Vendor of its responsibility for the performance of any of its other
obligations under this Agreement or (b) constitute AMEX's consent to further
assignment or subcontracting. This Agreement shall be binding on the parties and
their respective successors and permitted assigns. Any assignment or
subcontracting in contravention of this Section 25.01 shall be void.
Notwithstanding the foregoing, AMEX may assign this Agreement to its parent, a
wholly-owned subsidiary or an affiliate if AMEX provides Vendor with 30 days'
notice prior to the effective date of assignment.
25.02 Notices. All notices, requests, approvals and consents
and other communications required or permitted under this Agreement shall be in
writing and shall be sent by telecopy to the telecopy number specified below. A
copy of any such notice shall also be personally delivered or sent by (1) first
class U.S. Mail, registered or certified, return receipt requested, postage
pre-paid or (2) U.S. Express Mail, Federal Express, or other, similar overnight
bonded mail delivery services.
In the case of AMEX:
American Express Travel Related
Services Company, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President
-Payment Processing
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
and
American Express Travel Related
Services Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Senior Vice President
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
With copies to:
American Express Travel Related
Services Company, Inc.
American Express Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
In the case of Vendor:
Regulus West LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President -
Sales, Marketing, Alliance
and Product Management
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
With copies to:
Blank Rome ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
Either party may change its address or telecopy number for notification purposes
by giving the other party notice of the new address or telecopy number and the
date upon which it will become effective. Any such notice shall be deemed given
on the date delivered or when placed in the mail as specified.
49
25.03 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one single
agreement between the parties.
25.04 Headings/Exhibits. The section headings in this
Agreement are solely for convenience and shall not be considered in its
interpretation. The recitals set forth on the first page of this Agreement are
incorporated into the body of this Agreement. The Exhibits referred to
throughout this Agreement are attached to this Agreement and are incorporated
into this Agreement. Unless the context clearly indicates, words used in the
singular include the plural and words in the plural include the singular.
25.05 Relationship. The performance by Vendor of its duties
and obligations under this Agreement shall be that of an independent contractor
and nothing contained in this Agreement shall create or imply an agency
relationship between AMEX and Vendor, nor shall this Agreement be deemed to
constitute a joint venture or partnership between AMEX and Vendor. Vendor agrees
and represents that it is an in independent contractor and that its personnel
are not AMEX's agents or employees for Federal tax purposes, and are not
entitled to any AMEX employee benefits. Vendor assumes sole and full
responsibility for its acts and Vendor and its personnel have no authority to
make commitments or enter into contracts on behalf of, bind or otherwise
obligate AMEX in any manner whatsoever.
50
25.06 Consents, Approvals and Requests. Except as specifically
set forth in this Agreement, all consents and approvals to be given by either
party under this Agreement shall not be unreasonably withheld and each party
shall make only reasonable requests under this Agreement.
25.07 Severability. If any provision of this Agreement is held
by a court of competent jurisdiction to be contrary to law, then the remaining
provisions of this Agreement shall remain in full force and effect, and the
parties shall substitute for the invalid provisions a valid provision which most
closely approximates the intent and economic effect of the invalid provision.
25.08 Waiver. No delay or omission by either party to exercise
any right or power it has under this Agreement shall impair or be construed as a
waiver of such right or power. A waiver by any party of any breach or covenant
shall not be construed to be a waiver of any succeeding breach or any other
covenant. All waivers must be in writing and signed by the party waiving its
rights.
25.09 Publicity. Each party shall (1) submit to the other all
advertising, written sales promotion, press releases and other publicity matters
relating to this Agreement in which the other party's name or ▇▇▇▇ is mentioned
or language from which the connection of said name or ▇▇▇▇ ▇▇▇ be inferred or
implied and (2) not publish or use such advertising, sales
51
promotion, press releases or publicity matters without the other party's prior
written consent.
25.10 Entire Agreement. This Agreement and the Exhibits, which
are hereby incorporated by reference into this Agreement, represent the entire
agreement between the parties with respect to its subject matter, and there are
no other representations, understandings or agreements between the parties
relative to such subject matter.
25.11 Amendments. No amendment to, or change, waiver or
discharge of, any provision of this Agreement shall be valid unless in writing
and signed by an authorized representative of the party against which such
amendment, change, waiver or discharge is sought to be enforced.
25.12 Survival. The terms of [***] and this Section 25.12
shall survive the expiration of this Agreement or termination of this Agreement
for any reason.
25.13 Third Party Beneficiaries. Each party intends that this
Agreement shall not benefit, or create any right or cause of action in or on
behalf of, any person or entity other than AMEX and Vendor.
25.14 Governing Law. EXCEPT AS REQUIRED BY LOCAL LAW IN ANY
JURISDICTION OUTSIDE OF THE UNITED STATES, THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAWS OF THE
52
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO
THE CONFLICTS OF LAW (OTHER THAN SECTIONS 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK). The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
25.15 Covenant of Further Assurances. AMEX and Vendor covenant
and agree that, subsequent to the execution and delivery of this Agreement and
without any additional consideration, each of AMEX and Vendor shall execute and
deliver any further legal instruments and perform any acts which are or may
become necessary to effectuate the purposes of this Agreement.
25.16 Construction. The word "including" shall mean
"including, without limitation," throughout this Agreement.
25.17 Interpretation of Documents. In the case of conflicts
between the terms of this Agreement and the terms of the RFP, the terms of this
Agreement shall prevail.
53
IN WITNESS WHEREOF, Vendor and AMEX have each caused this
Agreement to be signed and delivered by its duly authorized representative.
REGULUS WEST LLC
By:___________________________
Title:________________________
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By:___________________________
Title:________________________
Exhibit A
[*** - 132 pages omitted]
Exhibit B
[*** - 5 pages omitted]
Exhibit C
[*** 2 pages omitted]
Exhibit D
[Not Applicable]
Exhibit E
[Not Applicable]
Exhibit F
[Not Applicable]
Exhibit G
[Not Applicable]
[***]= Pursuant to 17 CFR 230.406, confidential information has been omitted and
has been filed separately with the Securities and Exchange Commission pursuant
to a Confidential Treatment Application filed with the Commission.
AMENDMENT NO. 1 TO
REMITTANCE PROCESSING SERVICES AGREEMENT
THIS AMENDMENT NO. 1 TO REMITTANCE PROCESSING SERVICES AGREEMENT is
made as of the first day of July 2000, by and between AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC., a New York corporation with an office at
American Express Tower, World Financial Center, New York, New York 10285
("Amex"), and REGULUS WEST LLC, a Delaware limited liability company with an
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Vendor").
WITNESSETH
WHEREAS, Amex and Vendor entered into a Remittance Processing
Services Agreement dated as of October 25, 1999 (the "Agreement"); and
WHEREAS, Amex and Vendor wish to amend the Agreement as set forth
below.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein and in the Agreement, the parties hereto agree as
follows:
1. Terms used herein which are not otherwise defined shall have the meanings
ascribed to such terms in the Agreement.
2. Exhibit B of the Agreement is hereby deleted and the attached Exhibit B is
substituted therefor.
3. Schedules 1, 2 and 3 of Exhibit E of the Agreement are hereby deleted and the
following sentence is hereby added to Exhibit E, above the chart labeled "Pass
Through Charges":
"The unit price per remittance is $[***], which includes [***]
items. The unit price does not include the Pass Through
Charges identified below. Effective February 1, 2001, the unit
price per remittance is $[***]."
4. The "Vendor and AMEX Pricing Agreement" on the fourth, fifth and sixth pages
of Exhibit E is hereby deleted.
5. Exhibit F of the Agreement is hereby deleted.
6. Except as specifically amended herein, the terms of the Agreement shall
continue in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to
Remittance Processing Services Agreement to be executed by an authorized officer
as of the date written above.
REGULUS WEST LLC AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY,
INC.
By:________________________ By:_________________________
Name:______________________ Name:_______________________
Title:_____________________ Title:______________________
[***]= Pursuant to 17 CFR 230.406, confidential information has been omitted and
has been filed separately with the Securities and Exchange Commission pursuant
to a Confidential Treatment Application filed with the Commission.
AMENDMENT NO. 2 TO
REMITTANCE PROCESSING SERVICES AGREEMENT
THIS AMENDMENT NO. 2 TO REMITTANCE PROCESSING SERVICES AGREEMENT
("Amendment No. 2") is made as of the first day of June 2002, by and between
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New York corporation
with an office at American Express Tower, World Financial Center, New York, New
York 10285 ("AMEX"), and REGULUS WEST LLC, a Delaware limited liability company
with an office at ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Vendor").
WITNESSETH
WHEREAS, AMEX and Vendor entered into a Remittance Processing
Services Agreement dated as of October 25, 1999 (the "Agreement") which was
amended by Amendment No. 1 To Remittance Processing Services Agreement dated as
of July 1, 2000 ("Amendment No. 1"); and
WHEREAS, AMEX and Vendor wish to further amend the Agreement as set
forth below.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein and in the Agreement and Amendment No. 1, the parties
hereto agree as follows:
1. Terms used herein which are not otherwise defined shall have the meanings
ascribed to such terms in the Agreement.
2. Section 2.01 of the Agreement is hereby amended by deleting "October 24,
2001" and inserting "October 24, 2005" in its place and stead.
3. Section 2.02 of the Agreement is hereby amended to read in its entirety as
follows:
"2.02 Expiration and Renewal. Unless terminated earlier
pursuant to Article 20 and provided AMEX is not in default of
its obligations under this Agreement, this Agreement shall
automatically renew for one two year term (a "Renewal Term")
unless AMEX provides at least 120 days written notice of
non-renewal to Vendor prior to the expiration of the Term. If
this Agreement is renewed pursuant to this Section 2.02, its
then current terms and conditions shall remain in force and
effect during the Renewal Term and the Rates during the
Renewal Term shall be as set forth in Exhibit E."
4. Section 12.02 of the Agreement is hereby deleted in its entirety
and nothing is substituted in its place and stead.
5. The first sentence of Section 16.01 of the Agreement is hereby amended by
deleting the words "Upon reasonable advance written notice from AMEX,"
therefrom.
6. Clause (1) of Article 21 of the Agreement is hereby amended to read in its
entirety as follows:
"(1) continue to provide the Services to the extent requested
by AMEX (i) in the event of expiration at the end of the Term
or the Renewal Term, or termination by AMEX other than
pursuant to Section 20.02, at the Rates agreed upon by the
parties at such time, or (ii) in the event of termination by
AMEX pursuant to Section 20.02, at the Rates in effect under
this Agreement immediately prior to termination, and at
Service Levels for such Services in effect under this
Agreement immediately prior to such expiration or termination,
and".
7. The fourth (4th) sentence of Section 23.04(1) of the Agreement is hereby
amended to read in its entirety as follows:
"Notwithstanding anything herein, Vendor shall not be liable
to AMEX for damages in excess of $[***] during each Contract
Year. "
8. AMEX and Vendor hereby agree that the Vendor facilities located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇ Park") and at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ("Dallas") shall be Vendor Service Locations.
Vendor shall provide Migration Services for these Vendor Service Locations in
accordance with Article 3 of the Agreement. Migration Services will commence at
the ▇▇▇▇▇▇▇▇ Park Vendor Service Location on August 13, 2002 and the Migration
Completion Date will be November 14, 2002. Migration Services will commence at
the Dallas Vendor Service Location on October 9, 2002 and the Migration
Completion Date will be January 10, 2003. Vendor and AMEX will agree in writing
upon any milestones and their completion dates for the Migration Services. In
the event that, at either the ▇▇▇▇▇▇▇▇ Park Vendor Service Location or the
Dallas Vendor Service Location, the Migration Completion Date is delayed by more
than [***] days for any reason within the control of Vendor, AMEX may terminate
migration to the affected Vendor Service Location and procure an alternate
source for remittance processing services and Vendor will be obliged to
reimburse AMEX as provided in the second and third sentences of Section 3.04.
Vendor and AMEX must mutually agree in writing to any changes to a Migration
Completion Date.
9. Within 60 days of the Migration Completion Date at each of the ▇▇▇▇▇▇▇▇ Park
and Dallas Vendor Service Locations, Vendor will develop and submit to AMEX for
AMEX's approval a DRP for such Vendor Service Location.
10. Vendor agrees to implement image transmission capability (check images with
audit trail) no later than the commencement of live processing at the ▇▇▇▇▇▇▇▇
Park and Dallas Vendor Service Locations. Vendor will implement image
transmission capability at the Los Angeles, California ("Los Angeles") Vendor
Service Location no later than December 31, 2003. Vendor will pay for front and
back cameras for first pass image capture, as well as servers required as
determined by the mutual agreement of the parties. AMEX will pay for any
routers, circuits, encryption license and programming expenses at the
developmental programming rate provided in Exhibit E.
11. Vendor agrees to implement ▇▇▇▇ Sense in the Dallas, ▇▇▇▇▇▇▇▇ Park and Los
Angeles Vendor Services Locations. Vendor, at its expense, will install back
cameras in the Dallas and ▇▇▇▇▇▇▇▇ Park Vendor Service Locations for this
purpose. Vendor will develop a ▇▇▇▇ Sense application to identify both address
changes and correspondence on remittance coupons. Vendor will bear the first
$[***] of the expense of developing the ▇▇▇▇ Sense application, and AMEX will
bear the balance, at the developmental programming rate provided in Exhibit E,
up to an additional $[***], provided that if the total cost of developing and
implementing the ▇▇▇▇ Sense application exceeds $[***], the parties shall
mutually agree upon the allocation of such excess costs. ▇▇▇▇ Sense will be
implemented in the Dallas and ▇▇▇▇▇▇▇▇ Park Vendor Service Locations no later
than the commencement of live processing at each facility, and in the Los
Angeles Vendor Service Location no later than December 31, 2003. During the
first 90 days after implementation of ▇▇▇▇ Sense at each Vendor Service
Location, the parties will monitor the output to determine whether 100% of
address changes are being detected while false positives are being minimized.
The parties thereafter will agree upon performance metrics for measures impacted
by ▇▇▇▇ Sense as provided in Exhibit B.
12. The Amended and Restated Exhibit B to the Agreement as amended by Amendment
No. 1 is hereby deleted in its entirety and the 2nd Amended and Restated Exhibit
B which is attached hereto is inserted in its place and stead.
13. Exhibit C to the Agreement is hereby amended by deleting the words "and
financial" from the first bullet of the Basic Requirements for the Employee
category.
14. The Amended and Restated Exhibit E to the Agreement as amended by Amendment
No. 1 is hereby deleted in its entirety and the 2nd Amended and Restated Exhibit
E which is attached hereto is inserted in its place and stead.
15. Vendor agrees to make commercially reasonable efforts to reduce its internal
costs and the unit price it charges AMEX for the Services, by exploring and
potentially utilizing technology changes, such as check truncation, and process
changes, such as offshore keying. Vendor agrees to offer check truncation at
each Vendor Service Location no later than December 31, 2003, at a price to be
agreed upon once requirements are fully defined. Vendor and AMEX will cooperate
to implement a pilot program of offshore keying, with a target for
implementation of such pilot program in the second quarter of 2003. The parties
will define the measures of success and conduct a business analysis of the
results in order to determine whether this process will be implemented on an
ongoing
basis at all Vendor Service Locations. Notwithstanding anything to the contrary,
nothing in this Amendment No. 2 or the Agreement shall obligate Vendor to
implement any programs, processes or services which Vendor reasonably determines
not to be in its best interests.
16. Except as specifically amended herein, the terms of the Agreement shall
continue in full force and effect. In the event of a conflict or ambiguity
between the terms set forth in this Amendment No. 2 and the terms of the
Agreement, the terms of this Amendment No. 2 shall govern with respect to the
conflicting or ambiguous terms.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to
Remittance Processing Services Agreement to be executed by an authorized officer
as of the date written above.
REGULUS WEST LLC AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY,
INC.
By:________________________ By:_________________________
Name:______________________ Name:_______________________
Title:_____________________ Title:______________________
2nd Amended and Restated
Exhibit E
[*** - 3 pages omitted]
AMERICAN EXPRESS (C) PROPRIETARY & CONFIDENTIAL
AMENDMENT AGREEMENT NUMBER FLL-05-6-MP01-03
This Amendment Agreement Number FLL-05-6-MP01-03 ("Amendment Agreement") is made
and entered into this 24th day of October, 2005 between American Express Travel
Related Services Company, Inc., having its principal place of business at
American Express Tower, World Financial Center, New York, New York 10285
("Amexco") and Regulus West LLC, a Delaware limited liability company, having
its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Company").
RECITALS
WHEREAS, Amexco and Company wish to amend certain of their understandings as set
forth in the agreement executed between the parties on or about October 25,
1999, (the "Agreement").
NOW, THEREFORE, IN CONSIDERATION of the mutual promises and agreements set forth
below, the parties agree as follows:
BACKGROUND
A. Amexco and Company entered into the Agreement (incorporated herein
by reference and attached hereto as Exhibit 1) for remittance
processing and related services as described in the Procedures Manual,
attached as Exhibit A therein, and as otherwise identified in the
Agreement (the "Services").
B. Amexco and Company now desire to amend the term of the Agreement,
specifically section 2.01 Term.
AMENDED TERM(S)
A. NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. Terms used herein which are not otherwise defined shall
have the meanings ascribed to such terms in the Agreement.
2. Section 2.01 of the Agreement is hereby amended as follows:
AMERICAN EXPRESS (C) PROPRIETARY & CONFIDENTIAL
"The initial term of this Agreement shall commence on the
Effective Date and shall continue until 12:00 midnight on
March 31, 2006, unless terminated earlier pursuant to Article
20 (the "Term"). (Each 12-month period commencing on the
Effective Date or any anniversary of the Effective Date during
the Term or any Renewal Term, a "Contract Year")."
GENERAL
A. Except as otherwise modified herein, the capitalized terms
used in this Amendment Agreement shall have the meaning
specified in the Agreement.
B. Except as amended herein and by the terms of all prior
amendments not inconsistent with this Amendment Agreement, the
remaining provisions of the Agreement shall continue in full
force and effect.
IN WITNESS WHEREOF, Company and Amexco have caused this Amendment Agreement to
be executed on their behalf by their duly authorized officers, as of the date
first written above.
AMERICAN EXPRESS TRAVEL REGULUS WEST LLC
RELATED SERVICES COMPANY, INC.
By: By:
------------------------------ ---------------------------
Name: Name:
---------------------------- -------------------------
(TYPE OR PRINT) (TYPE OR PRINT)
Title: Title:
--------------------------- ------------------------
Date: October 24th, 2005 Date: October 24th, 2005
---------------------------- -------------------------
AMERICAN EXPRESS (C) PROPRIETARY & CONFIDENTIAL
EXHIBIT 1
[COPY OF AGREEMENT]