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EXHIBIT 10(i)
SERVICE AGREEMENT
BETWEEN
BANKTEXAS N.A. AND FIRSTSERV, INC.
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ATTACHMENT 1
TERMS AND CONDITIONS
I. SERVICES
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(A) FirstServ, Inc. agrees to furnish to BankTEXAS N.A. (a
national banking association herein called "BankTEXAS")
and BankTEXAS agrees to obtain all of BankTEXAS'
requirements for data processing services selected by
BankTEXAS from the Product and Price Schedule.
Additional services may be selected from the Product
and Price Schedule upon prior written notice to
FirstServ, Inc. at FirstServ, Inc.'s then current list
price by executing an amended Summary Page.
(B) FirstServ, Inc. will provide conversion and training
services for the fees specified on the Summary Page.
Classroom training in the use and operation of the
system for the number of BankTEXAS personnel mutually
agreed upon in the conversion planning process will be
provided at a training facility mutually agreed upon.
Fees for training do not include travel, lodging and
like expenses of BankTEXAS personnel at the training
facility. Conversion services are those activities
designed to transfer the processing of BankTEXAS' data
from it's present processing company to FirstServ,
Inc..
(C) FirstServ, Inc. will also provide Network Support
Service consisting of communication line monitoring and
diagnostic equipment and support personnel to discover,
diagnose, repair or report line problems to the
appropriate telephone company. The fee for this
service is also listed on the Summary Page.
(D) FirstServ, Inc. shall upon request act as BankTEXAS'
designated representative to arrange for the purchase,
and installation of data lines necessary to access the
FirstServ, Inc. system. Where requested, additional
dial-up lines and equipment to be utilized as a backup
to the regular data lines may also be ordered.
FirstServ, Inc. shall bill BankTEXAS for the actual
charges incurred for the data lines and for the
maintenance of the modems and other interface devices.
II. TERM
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The term of this Agreement shall commence on the effective
date listed on the Summary Page. Upon expiration, the
Agreement will automatically renew for successive terms of
twelve (12) months unless either party shall have provided
written notice to the other at least one-hundred eighty
(180) days prior to expiration, of the then current term, of
its intent not to renew.
III. SOFTWARE/FIRMWARE
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Unmodified third party software or firmware
("Software") may be supplied as part of the Agreement.
All such Software shall be provided subject to Software
License Agreements.
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IV. PRICE AND PAYMENT
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(A) Fees for FirstServ, Inc.'s services and for any
Equipment or Software are set forth on the Product and
Price Schedule, including where applicable minimum
monthly charges and payment schedules for onetime fees.
(B) Standard Fees shall be invoiced no later than the
fifteenth (15th) of each month for the then current
month.
(C) The Base Service Charge listed on the Product and Price
Schedule shall not change more than once a year and
then only upon six (6) months' prior written notice
annually.
(D) This above limitation shall not apply to Pass-through
expenses. A Pass-through Expense is a charge for goods
or services by FirstServ, Inc. on BankTEXAS' behalf
which are to be billed to BankTEXAS without mark-up.
(E) The fees listed on the Summary Page and on the Product
and Price Schedule do not include and BankTEXAS is
responsible for furnishing transportation or
transmission of information between FirstServ, Inc.'s
data center, BankTEXAS' site and any applicable
clearing house, regulatory agency or Federal Reserve
Bank. Where BankTEXAS has elected to have FirstServ,
Inc. provide Telecommunication Services, the price for
the Services will be provided on the Summary Page.
(F) Network Support Service Fees and Local Network Fees are
based upon services rendered from FirstServ, Inc.'s
premises. Off-premise support will be provided upon
BankTEXAS' request on an as available basis at
FirstServ, Inc. then current charges for time and
materials, plus reasonable travel and living expenses.
V. CLIENT OBLIGATIONS
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(A) BankTEXAS shall be solely responsible for the input,
transmission or delivery of all information and data
required by FirstServ, Inc. to perform the services
except where BankTEXAS has retained FirstServ, Inc. to
handle such responsibilities on its behalf. The data
shall be provided in a format and manner approved by
FirstServ, Inc.. BankTEXAS will provide at its own
expense or procure from FirstServ, Inc. all equipment,
computer software, communication lines and interface
devices required to access the FirstServ, Inc. System.
If BankTEXAS has elected to provide such items itself,
FirstServ, Inc. shall provide BankTEXAS with a list of
compatible equipment and software.
(B) BankTEXAS shall designate appropriate BankTEXAS
personnel for training in the use of the FirstServ,
Inc. System, shall supply FirstServ, Inc. access to
BankTEXAS' site during normal business hours for
conversion and shall cooperate with FirstServ, Inc.
personnel in the conversion and implementation of the
services.
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V. CLIENT OBLIGATIONS - CONTINUED
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(C) BankTEXAS shall comply with any operating instructions
on the use of the FirstServ, Inc. system provided by
FirstServ, Inc., shall review all reports furnished by
FirstServ, Inc. for accuracy and shall work with
FirstServ, Inc. to reconcile any out of balance
conditions. BankTEXAS shall determine and be
responsible for the authenticity and accuracy of all
information and data submitted to FirstServ, Inc.
(D) BankTEXAS shall furnish, or if FirstServ, Inc. agrees
to so furnish, reimburse FirstServ, Inc. for courier
services applicable to the services requested.
VI. GENERAL ADMINISTRATION
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FirstServ, Inc. is continually reviewing and modifying the
FirstServ, Inc. system to improve service and to comply with
federal government regulations applicable to the data
utilized in providing services to BankTEXAS. FirstServ,
Inc. reserves the right to make changes in the service,
including, but not limited to operating procedures, security
procedures, the type of equipment resident at and the
location of FirstServ, Inc.'s data center. FirstServ, Inc.
will provide BankTEXAS under this contract as follows: at
least sixty (60) days prior written notice of changes in
procedures or reporting and at least six (6) months prior
written notice of changes in service costs.
VII. CLIENT CONFIDENTIAL INFORMATION
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(A) FirstServ, Inc. shall treat all information and
data relating to BankTEXAS business provided to
FirstServ, Inc. by BankTEXAS, or information
relating to BankTEXAS' Customers, as confidential
and shall safeguard BankTEXAS' information with
the same degree of care used to protect FirstServ,
Inc.'s confidential information. FirstServ, Inc.
and BankTEXAS agree that master and transaction
data files are owned by and constitute property of
BankTEXAS. BankTEXAS data and records shall, be
subject to regulation and examination by State and
Federal supervisory agencies to the same extent as
if such information were on BankTEXAS' premises.
FirstServ, Inc. obligations under this Section VII
shall survive the termination or expiration of
this Agreement.
(B) FirstServ, Inc. shall maintain adequate backup
procedures including storage of duplicate record
files as necessary to reproduce BankTEXAS' records
and data. In the event of a service disruption
due to reasons beyond FirstServ, Inc.'s control,
FirstServ, Inc. shall use diligent efforts to
mitigate the effects of such an occurrence.
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VIII. FIRSTSERV, INC. CONFIDENTIAL INFORMATION
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(A) BankTEXAS shall not use or disclose to any third
persons any confidential information concerning
FirstServ, Inc.. FirstServ, Inc. confidential
information is that which relates to FirstServ,
Inc.'s software, research, development, trade
secrets or business affairs including, but not
limited to, the terms and conditions of this
Agreement but does not include information in the
public domain through no fault of BankTEXAS.
BankTEXAS obligations under this Section VIII
shall survive the termination or expiration of
this Agreement.
(B) FirstServ, Inc.'s system contains information and
computer software which is proprietary and
confidential information of FirstServ, Inc., its
suppliers and licensers. BankTEXAS agrees not to
attempt to circumvent the devices employed by
FirstServ, Inc. to prevent unauthorized access to
the FirstServ, Inc.'s System.
IX. WARRANTIES
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FirstServ, Inc. will accurately process BankTEXAS' work
provided that BankTEXAS supplies accurate data and follows
the procedures described in FirstServ, Inc.'s User Manuals,
notices and advises. FirstServ, Inc. personnel will
exercise due care in the processing of BankTEXAS' work. In
the event of an error caused by FirstServ, Inc.'s personnel,
programs or equipment, FirstServ, Inc. shall correct the
data and/or reprocess the affected report at no additional
cost to BankTEXAS.
X. LIMITATION OF LIABILITY
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IN NO EVENT SHALL FIRSTSERV, INC. BE LIABLE FOR LOSS OF
GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING FROM BANKTEXAS' USE OF
FIRSTSERV, INC.'S SERVICES, OR FIRSTSERV, INC.'S SUPPLY OF
EQUIPMENT OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM
ARISES IN TORT OR IN CONTRACT. FIRSTSERV, INC.'S AGGREGATE
LIABILITY FOR ANY AND ALL CAUSES OF ACTION RELATING TO
SERVICES SHALL BE LIMITED TO THE TOTAL FEES PAID BY
BANKTEXAS TO FIRSTSERV, INC. IN THE THREE (3) MONTH PERIOD
PRECEDING THE DATE THE CLAIM ACCRUED. FIRSTSERV, INC.'S
AGGREGATE LIABILITY FOR A DEFAULT RELATING TO EQUIPMENT OR
SOFTWARE SHALL BE LIMITED TO THE AMOUNT PAID FOR THE
EQUIPMENT OR SOFTWARE.
XI. PERFORMANCE STANDARDS
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(A) ON-LINE AVAILABILITY - FirstServ, Inc.'s standard of
performance shall be on-line availability of the system
98% of the time that it is scheduled to be so available
over a three month period (the "Measurement Period").
Actual on-line performance will be calculated monthly
by comparing the number of hours which the system was
scheduled to be operational on an on-line basis
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XI. PERFORMANCE STANDARDS - CONTINUED
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with the number of hours, or a portion thereof, it was
actually operational on an on-line basis. Downtime may
be caused by operator error, hardware malfunction or
failure, or environmental failures such as loss of
power or air conditioning. Downtime caused by reasons
beyond FirstServ, Inc.'s control should not be
considered in the statistics.
(B) REPORT AVAILABILITY - FirstServ, Inc.'s standard of
performance for report availability shall be that, over
a three (3) month period, ninety-five percent (95%) of
all Critical Daily Reports shall be available for
remote printing on time without significant errors. A
Critical Daily Report shall mean priority group reports
which FirstServ, Inc. and BankTEXAS have mutually
agreed in writing are necessary to properly account for
the previous day's activity and properly notify
BankTEXAS of overdraft, NSF or return items. The
agreed upon Critical Reports shall be listed on an
exhibit attached to the final conversion plan. A
Significant error is one which impairs BankTEXAS'
ability to properly account for the previous days
activity and/or properly account for overdraft, NSF or
return items. Actual performance will be calculated
monthly by comparing the total number of BankTEXAS
reports scheduled to be available from FirstServ, Inc.
to the number of reports which were available on time
and without error.
(C) EXCLUSIVE REMEDY - In the event that FirstServ, Inc.'s
performance fails to meet the standards listed above
and such failure is not the result of a BankTEXAS error
or omission, BankTEXAS' sole and exclusive remedy for
such default shall be the right to terminate this
Agreement in accordance with the provisions of this
paragraph. In the event that FirstServ, Inc. fails to
achieve any Performance Standards, alone or in
combination, for the prescribed measurement period,
BankTEXAS shall notify FirstServ, Inc. of its intent to
terminate this agreement if FirstServ, Inc. fails to
restore performance to the committed levels.
FirstServ, Inc. shall advise BankTEXAS promptly upon
correction of the system deficiencies (in no event
shall corrective action exceed sixty (60) days from the
notice date) and shall begin an additional measurement
period. Should FirstServ, Inc. fail to achieve the
required Performance Standards during the remeasurement
period, BankTEXAS may terminate this Agreement and
FirstServ, Inc. shall cooperate with BankTEXAS to
achieve an orderly transition to BankTEXAS' replacement
processing system. BankTEXAS may also terminate this
Agreement if FirstServ, Inc.'s performance for the same
standard is below the relevant performance standard for
more than two (2) measurement periods in any
consecutive twelve (12) months
or for more than five (5) measurement periods during
the term of this agreement. During the period of
transition, BankTEXAS shall pay only such charges as
are incurred for monthly fees until the date of
deconversion. FirstServ, Inc. shall not charge
BankTEXAS for services relating to BankTEXAS'
deconversion.
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XII. DISASTER RECOVERY
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(A) A Disaster shall mean any unplanned interruption
of the operations of or inaccessibility to the
FirstServ, Inc. data center which appears in
FirstServ, Inc.'s reasonable judgement to require
relocation of processing to an alternative site.
FirstServ, Inc. shall notify BankTEXAS as soon as
possible after it deems a service outage to be a
Disaster. FirstServ, Inc. shall move the
processing of BankTEXAS' standard on-line services
to an alternative processing center as
expeditiously as possible. BankTEXAS shall
maintain adequate records of all transactions
during the period of service interruption and
shall have personnel available to assist First
Serv, Inc in implementing the switchover to the
alternative processing site. During a Disaster,
optional or on-request services shall be provided
by FirstServ, Inc. only to the extent that there
is adequate capacity at the alternate center and
only after stabilizing the provision of base on-
line services.
(B) FirstServ, Inc. shall work with BankTEXAS to
establish a plan for alternative date
communications in the event of a Disaster.
BankTEXAS shall be responsible for furnishing any
additional communications equipment and data lines
required under the adopted plan.
(C) First Serv, Inc shall test its Disaster Recovery
Services Plan by conducting one annual test.
BankTEXAS agrees to participate in and assist
FirstServ, Inc. with such testing. Test results
will be made available to BankTEXAS' regulators,
internal and external auditors, and (upon request)
to BankTEXAS' insurance underwriters.
(D) BankTEXAS understands and agrees that the
FirstServ, Inc. Disaster Recovery Plan is designed
to minimize but not eliminate risks associated
with a Disaster affecting FirstServ, Inc.'s data
center. FirstServ, Inc. does not warrant that
service will be uninterrupted or error free in the
event of a Disaster. BankTEXAS maintains
responsibility for adopting a disaster recovery
plan relating to disasters affecting BankTEXAS'
facilities and for securing business interruption
insurance or other insurance as necessary to
properly protect BankTEXAS' revenues in the event
of a disaster.
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XIII. TERMINATION OR EXPIRATION
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(A) In the event that BankTEXAS is thirty (30) days in
arrears in making any payment required, or in the
event of any other material default by either
FirstServ, Inc. or BankTEXAS in the performance of
their obligations, the affected party shall have
the right to give written notice to the other of
the default and its intent to terminate this
Agreement stating with reasonable particularity
the nature of the claimed default. This Agreement
shall terminate if the default has not been cured
within a reasonable time with a minimum being
thirty (30) days from the effective date of the
notice.
(B) Upon the expiration of this Agreement, or its
termination due to FirstServ, Inc.'s business
termination, FirstServ, Inc. shall furnish to
BankTEXAS such copies of BankTEXAS' data files as
BankTEXAS may request in machine readable format
form along with such other information and
assistance as or is reasonable and customary to
enable BankTEXAS to deconvert from the FirstServ,
Inc. system. BankTEXAS shall reimburse FirstServ,
Inc. for the production of data records and other
services at FirstServ, Inc.'s current fees for
such services.
XIV. INSURANCE
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FirstServ, Inc. carries Comprehensive General Liability
insurance with primary limits of two million dollars,
Commercial Crime insurance covering Employee Dishonesty
in the amount of fifteen million dollars, all-risk
replacement cost coverage on all equipment used at
FirstServ, Inc.'s data center and Workers Compensation
coverage on FirstServ, Inc. employees wherever located
in the United States.
XV. GENERAL
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(A) This Agreement is binding upon the parties and their
respective successors and permitted assigns. Neither
party may assign this Agreement in whole or in part
without the consent of BankTEXAS, and provided further
that FirstServ, Inc. may subcontract any or all of the
services to be performed under this Agreement. Any
such subcontractors shall be required to comply with
all of the applicable terms and conditions of this
Agreement.
(B) The parties agree that, in connection with the
performance of their obligations hereunder, they will
comply with all applicable Federal, State, and local
laws including the laws and regulations regarding Equal
Employment Opportunities.
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XV. GENERAL - CONTINUED
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(C) FirstServ, Inc. agrees that the office of
Thrift Supervision, FDIC, or other authority
and responsibility provided to the regulatory
agencies pursuant to the Bank Service
Corporation Act, 12 U.S.C. 1867 (C) relating
to service performed by contract or
otherwise. First Serv, Inc also agrees that
its services shall be subject to oversight by
the O.C.C., FDIC or state banking departments
as may be applicable under laws and
regulations pertaining to BankTEXAS' charter.
(D) Neither party shall be liable for any errors, delays or
non-performance due to events beyond its reasonable
control including, but not limited to, acts of God,
failure or delay of power or communications, changes in
law or regulation or other acts of governmental
authority, strike, weather conditions or
transportation.
(E) All written notices required to be given under this
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Agreement shall be sent by Registered or Certified
Mail, Return Receipt Requested, postage prepaid, or by
confirmed facsimile to the persons and at the
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addresses listed on the Summary Page or to such other
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address or person as a party shall have designated in
writing.
(F) The failure of either party to exercise in any respect
any right provided for herein shall not be deemed a
waiver of any rights.
(G) Each party acknowledges that it has read this
Agreement, understands it, and agrees that it is the
complete and exclusive statement of the Agreement
between the parties and supersedes and merges any prior
or simultaneous proposals, understandings and all other
agreements with respect to the subject matter. This
Agreement may not be modified or altered except by a
written instrument duly executed by both parties.
BANKTEXAS N.A. FIRST SERV, INC.
s/ David F. Weaver s/ Thomas A. Bangert
By----------------------------- By--------------------------
David F. Weaver Thomas A. Bangert
President President
12-1-94
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ATTACHMENT 2
PRODUCT AND PRICE SCHEDULE
ONE-TIME MONTHLY
VOLUME PRICE FEES FEES
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BASE SERVICES: $25,000.00
Contractual Accounts 75,000 Base
Contractual Transactions 475,000 Base
DEPOSIT ACCOUNTS
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Demand/Now
Savings/CD's
TOTAL DEPOSIT ACCOUNTS 0.25 $ 0.00
(Above Base)
LOAN ACCOUNTS
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Commercial Loans
Consumer Loans
TOTAL LOAN ACCOUNTS 0.25 $ 0.00
(Above Base)
TRANSACTIONS
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TOTAL TRANSACTIONS 0.01 $ 0.00
(Above Base)
FINANCIAL MANAGEMENT
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General Ledger Included In
Base
Per G/L Account/Cost Center Record Included In
Base
TOTAL FINANCIAL MANAGEMENT FEES $0.00
TOTAL BASE SERVICES FEES: $25,000.00
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ONE-TIME MONTHLY
VOLUME PRICE FEES FEES
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OTHER SERVICES:
NETWORK SUPPORT FEES
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Per Branch Pass-through Pass-through
TELECOMMUNICATIONS FEES
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One-Time Telecommunication Fees: Pass-through Pass-through
Line and Modem
Installation
Monthly Telecommunications Fees: Pass-through
Telephone Line Charges
Modem Equipment Lease Fees
Disaster Recovery
AUTOMATED TELLER MACHINES:
ONE-TIME ATM FEES
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Set-up Pass-through
MONTHLY ATM FEES
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Per Existing ATM Network Link Pass-through
ATM TRANSACTIONS FEES
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Per On-Us Transactions Pass-through
TELLER Base
MARKETING CIF (MCIF) Base
OPTICAL INFORMATION SYSTEM Base
QUERY REPORT WRITER Base
SAFE DEPOSIT BOX SYSTEM Base
LOAN PLATFORM Base
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SUMMARY
ONE-TIME MONTHLY
DATA PROCESSING SERVICE FEES: FEES FEES
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Base Services: $25,000.00
Network Support: Pass-through Pass-through
Telecommunications: Pass-through Pass-through
ATM Services: Pass-through Pass-through
Conversion Fee (Does not included
T&E or Special Interfaces) $50,000.00 Pass-through
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$50,000.00 $25,000.00
ONLINE SERVICING HOURS: TO BE DETERMINED
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Addresses for Notice to BankTexas N.A.
David F. Weaver, President
8820 Westheimer
Houston, TX 77063
(713) 954-2472
Dennis J. Lewis, Senior Vice President
13747 Montfort, Suite 350
Dallas, TX 75240
(214) 701-4674
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BASE SERVICES
* ACCOUNT ANALYSIS * SAVINGS
* ACH PROCESSING * SERVICE CHARGE MODELING
* ACCOUNT RECONCILIATION * SWEEP ACCOUNTING
* AUDIT CONFIRMATIONS * TAPE GENERATION FOR COUPON BOOKS
* CERTIFICATES OF DEPOSITS * TAPE GENERATION FOR CREDIT BUREAU
* COMMERCIAL LOANS * TELECOMMUNICATIONS (Fee Applicable)
* COMBINED STATEMENTS * ATM SERVICES (Fee Applicable)
* CONSUMER LOANS * AUDIT SYSTEM
* CUSTOM STATEMENT FORMATS * TELLER
* CUSTOMER INFORMATION FILE (CIF) * CORPORATE CASH MANAGEMENT
* DEMAND DEPOSIT ACCOUNTING * LOAN COLLECTION SYSTEM
* FINANCIAL MANAGEMENT SYSTEM (G/L) * LOAN DOCUMENT PREPARATION SYSTEM
* HOST DISASTER RECOVERY BACK-UP * MARKETING CIF (MCIF)
* LINES OF CREDIT * OPTICAL STORAGE & RETRIEVAL SYSTEM
* MORTGAGE LOANS * QUERY REPORT WRITER
* NETWORK SUPPORT (Fee Applicable) * REGULATORY COMPLIANCE MONITORING
SYSTEM
* ON-LINE NSF/OD RETURN PROCESSING
* REPORT DISTRIBUTION SYSTEM * SAFE DEPOSIT BOX SYSTEM
* RETIREMENT PROCESSING * SENDERO ASSET/LIABILITY MANAGEMENT
SYSTEM
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