1
EXHIBIT 10.30
DATA PROCESSING AGREEMENT
by and between
ALLTEL FINANCIAL INFORMATION SERVICES, INC.
and
REGIONAL ACCEPTANCE CORPORATION
3004 SOUTH MEMORIAL DRIVE
GREENVILLE, NORTH CAROLINA 27834
JULY ___, 1996
2
TABLE OF CONTENTS
1. Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Responsibilities of the Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.1 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2 Computer Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.3 Terminals/Communications Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.4 Processing Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.5 Client Approval of Program Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.6 Confidentiality of Client Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.7 Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.8 Supplies and Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.9 Client's Input Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Data Processing Premises and Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 Data Processing Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.2 Security Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5. Software. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.1 Software License. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.2 Additional Licensed Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5.3 Software Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.4 User Manuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.5 Third Party Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
i
3
5.6 Installation of New Systems and Subsystems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.7 Modifications Requested by Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.8 Regulatory Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6. Education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Staffing; Computer Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.1 Resident Technical Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8. Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.1 Timely Input and Output. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.2 Responsibility for Processing Data. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9. Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.1 Right to Terminate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.2 Method of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.3 Termination for Acquisition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.4 Termination for Other Reasons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.5 Termination for Convenience. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10. Transitional Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10.1 Offer of Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10.2 Transition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10.3 Additional Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11. Backup, Storage, Files and Programs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11.1 Storage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
11.2 Disaster Recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12. Effective Planning and Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ii
4
12.1 Steering Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12.2 Audit Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
13. Payment and Billing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
14. No Interference with Contractual Relationship. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
15. No Waiver of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16. Mergers and Acquisitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
17. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
18. Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
19. Confidential Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
20. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
21. Independent Contractor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
21.1 Client Supervisory Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
21.2 ALLTEL Financial's Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
21.3 ALLTEL Financial as an Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
22. Client and ALLTEL Financial Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
23. Previous Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
24. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
25. Covenant of Good Faith. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
26. Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
27. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
28. Section Titles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
iii
5
29. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
30. Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
31. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
32. Future Business Arrangements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
33. Dispute Resolution and Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
33.1 Informal Dispute Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
33.2 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
33.3 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
33.4 Costs and Attorney's Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
iv
6
DATA PROCESSING AGREEMENT
This is an Agreement, dated as of the 1st day of July, 1996
(hereinafter the "Effective Date"), by and between ALLTEL FINANCIAL INFORMATION
SERVICES, INC., an Arkansas corporation, 4001 Rodney Parham Road, Little Rock,
Arkansas 72212-2496 (hereinafter "ALLTEL Financial") and
REGIONAL ACCEPTANCE CORPORATION
3004 SOUTH MEMORIAL DRIVE
GREENVILLE, NORTH CAROLINA 27834
_
hereinafter "Client").
In consideration of the payments to be made and services to be performed
hereunder, the parties agree as follows:
1. SERVICES.
ALLTEL Financial will provide to Client the data processing services
and products described in this Agreement and its Exhibits. Such
services and products include, but are not limited to, the general
management of Client's data processing, installation and enhancement
of ALLTEL Financial-developed software systems, operation of software
systems developed by ALLTEL Financial and third parties, furnishing
and operating computer equipment, providing information in various
media forms, and a license to use ALLTEL Financial software systems.
The specific services provided and the applicable fees therefor are
described in more detail in this Agreement and its Exhibits.
2. TERM.
The term of this Agreement is five (5) years, beginning on the
Effective Date reflected above unless earlier terminated in accordance
with the provisions of this Agreement. The end of such term shall be
the "Expiration Date". At least nine (9) months prior to the
Expiration Date, ALLTEL Financial will submit to Client a written
proposal for renewal of this Agreement. Client will respond to such
proposal within ninety (90) days following receipt thereof.
3. RESPONSIBILITIES OF THE PARTIES.
ALLTEL Financial and Client agree to be responsible for the following
matters:
1
7
3.1 PERSONNEL. Upon execution hereof, ALLTEL Financial will offer
employment, at comparable compensation, when the compensation for each
employee is considered as a whole, to the current data processing
employees of Client, who have been designated by Client, in writing,
prior to the execution of this Agreement. In the event that
employment benefits provided to ALLTEL Financial are less favorable
than those provided by Client as of the Effective Date, ALLTEL
Financial will gross up such employees base salary so that total
compensation to such employee when employed by ALLTEL Financial is no
less favorable than that provided to such employees by Client. ALLTEL
Financial shall give such employees credit for prior service with
Client for purposes of determining eligibility for benefits with
ALLTEL Financial and shall provide medical insurance which shall waive
the exclusion for pre-existing conditions. The terms of such
employment shall be in the sole discretion of ALLTEL Financial. After
such employment by ALLTEL Financial, it shall be ALLTEL Financial's
responsibility for compliance with employment and labor laws
applicable to the employees hired by ALLTEL Financial pursuant to this
Section and ALLTEL Financial shall indemnify and hold harmless Client
from and against any and all liability, fees (including reasonable
attorneys' fees) or costs of any nature arising from ALLTEL
Financial's failure to comply with such laws. Client will indemnify,
defend and hold ALLTEL Financial harmless from and against any and all
liability, fees (including reasonable attorneys' fees) or costs of any
nature arising directly or indirectly from claims asserted by such
employees under any "Change of Control" contract with Client.
3.2 COMPUTER EQUIPMENT. Except as otherwise provided in this
Agreement Client will supply and pay for all CPUs, communications
controllers, DASD equipment, tape/cartridge equipment, printers and
related peripheral equipment which may be required for its operation
of the Data Center as defined in Section 4.1. ALLTEL Financial shall
be responsible for management of such equipment and recommendations
for equipment purchases.
3.3 TERMINALS/COMMUNICATIONS COST. Client will pay all costs of
installing and utilizing communication or telephone lines, data sets,
modems, terminals, and terminal control units, as required for
Client's on-line operations, testing and training. ALLTEL Financial
shall be responsible for management of such network and
recommendations for equipment purchases, upgrades and
reconfigurations.
3.4 PROCESSING SCHEDULE. ALLTEL Financial will process and update
Client's data in accordance with a schedule mutually agreed to by the
parties within 30 days after the Account Manager is present on
Client's site. Such schedule shall be appended to this Agreement as
Exhibit C. In addition, ALLTEL Financial shall submit to Client,
within 180 days after the Effective Date, a proposed set of
performance standards. The parties will endeavor to agree upon such
performance standards, however, if the parties are unable to agree,
the dispute regarding such performance standards shall be resolved in
accordance with the provisions of Section 33.
2
8
3.5 CLIENT APPROVAL OF PROGRAM CHANGES. All changes to programs
used to process Client's data affecting input, output, control, audit,
or accounting procedures of Client shall be made only with the prior,
written approval of Client.
3.6 CONFIDENTIALITY OF CLIENT DATA. All information concerning
Client, its business or customers submitted to ALLTEL Financial
pursuant to this Agreement shall be held in confidence by ALLTEL
Financial and shall not be disclosed. Client's data and files shall
be and remain the sole property of Client and shall be returned to
Client upon the expiration or termination of this Agreement. All
ALLTEL Financial employees with access to Client's data shall execute
ALLTEL Financial's standard non-disclosure agreement. No person or
entity shall be permitted to have access to Client's data in the
possession of ALLTEL Financial without the written authorization of
Client. All of Client's data in the possession of ALLTEL Financial
shall be available for examination by Client, at any time during
regular business hours, without notice. If ALLTEL Financial receives
any legal process requiring it to produce Client's data or that of any
of its customers, ALLTEL Financial shall notify Client promptly, and
deliver copies of such orders to Client, immediately and prior to
compliance with such process.
3.7 DELIVERY. Client, or its designee, is responsible for
delivery of all input to the Data Center. Client's branches are
responsible for the accurate and complete input of all of Client's
data. ALLTEL Financial is responsible for safekeeping Client's
documents while in ALLTEL Financial's possession in the Data Center
and for delivering printed output within the building in which the
Data Center is located as of the Effective Date. ALLTEL Financial
will also provide for output to the branches to be available on line
for access by such branches. Any charges incurred for the use of
couriers to distribute Client's output will be the responsibility of
Client.
3.8 SUPPLIES AND FORMS. Client will furnish to ALLTEL Financial
its current inventory of magnetic tapes, tape cartridges and impact
printer ribbons for use in processing Client's data. ALLTEL Financial
will provide all other magnetic tapes, tape cartridges and impact
printer ribbons required to perform ALLTEL Financial's processing
responsibilities during the term of this Agreement. Client will
provide all input and output forms, stock paper, and any forms
necessary for ALLTEL Financial to meet the processing requirements of
Client, as well as adequate storage therefor.
3.9 CLIENT'S INPUT DATA. All magnetic tapes furnished by Client
to ALLTEL Financial shall be in machine readable condition,
accompanied by control totals and, if applicable, encoded batch tickets
and proof tapes with totals. Client assumes all risk of loss and
expenses of reconstruction of input data, except for loss caused by the
negligence of ALLTEL Financial..
4. DATA PROCESSING PREMISES AND SECURITY.
3
9
4.1 DATA PROCESSING PREMISES. Client agrees to provide ALLTEL
Financial with adequate premises, in good repair, to perform its
responsibilities under this Agreement (hereinafter the "Data Center").
Without limiting the generality of the foregoing, Client agrees to
supply water, sewer, heat, lights, telephone lines, equipment and
service, air conditioning, electricity (including, if desired by
Client, an uninterruptable power system, battery backup and backup
generator capacity), daily janitorial services, office equipment and
furniture, and parking spaces for ALLTEL Financial employees under the
same conditions currently provided to employees of Client. ALLTEL
Financial is not responsible for any injury or damage to property or
persons which occurs in or around the Data Center unless it is caused
by the negligent or willful misconduct of ALLTEL Financial. Client
will provide telephone instruments and telephone service for ALLTEL
Financial to communicate with the employees of Client, Client's
service bureau customers, if any, and as reasonably required by ALLTEL
Financial to operate the Data Center. ALLTEL Financial agrees that it
has inspected the Data Center as of the Effective Date and that such
space allocated to ALLTEL Financial is adequate for ALLTEL Financial
to perform the services hereunder. At the expiration or termination
of this Agreement, ALLTEL Financial shall return the portion of the
Data Center allocated to ALLTEL Financial hereunder in "broom clean"
condition.
4.2 SECURITY STANDARDS. ALLTEL Financial will adhere to such
security standards with respect to Client's data as may reasonably be
imposed by Client, including prehiring personnel investigative
procedures and discharge of personnel. Client will pay the costs for
any modifications or additions to the Data Center which are required
by such security standards. Client will reimburse ALLTEL Financial
for actual costs incurred if adherence to security standards requested
or required by Client increases ALLTEL Financial's costs of operation.
5. SOFTWARE.
5.1 SOFTWARE LICENSE. Effective on the Expiration Date (or the
earlier Termination Date if this Agreement is terminated by Client
pursuant to the provisions of Section 9), ALLTEL Financial will grant
and convey to Client and Client will accept a license to use ALLTEL
Financial's proprietary application systems ("Software"), under the
terms and conditions set forth in Exhibit D. However, such software
license shall be effective for only that Software installed for
Client's benefit prior to and during the term of this Agreement.
5.2 ADDITIONAL LICENSED PROGRAMS. The license contemplated by
this Section 5 shall also apply to all ALLTEL Financial-developed
program modifications, enhancements, new systems or major subsystems
installed for Client's benefit pursuant to this Agreement. During the
term of this Agreement, when provided to ALLTEL Financial's other
commercial clients, ALLTEL Financial shall provide Client, at no
additional fees hereunder, all such modifications, enhancements, new
systems or major subsystems relating to the Software installed as of
the Effective Date or subsequently installed
4
10
pursuant to mutual agreement of the parties. ALLTEL Financial shall
provide Client information regarding such modifications, enhancements,
new systems or major subsystems to enable Client to make a decision as
to whether to install such release. In the event that Client elects
to have such release installed for Client's benefit, ALLTEL Financial
shall install such release as part of the services hereunder. ALLTEL
Financial will furnish Client, upon request, a current list of all
Software systems and subsystems developed and made available by ALLTEL
Financial. ALLTEL Financial will give Client ninety (90) days notice
prior to eliminating updates for a particular system version of any
ALLTEL Financial-developed program. In the event that ALLTEL
Financial eliminates updates for any system, Client shall have the
right to continue to use such system and obtain maintenance for such
system from ALLTEL Financial at additional fees pursuant to Section
5.7.
5.3 SOFTWARE WARRANTY. Each of the warranties set forth in
Exhibit D, as well as the patent and trademark indemnity provisions of
Exhibit D, shall apply to the Software, and all enhancements,
modifications or changes thereto, furnished or used pursuant to this
Agreement. In addition, ALLTEL Financial warrants that: (i) ALLTEL
Financial owns the Software and/or has the right to provide such
Software to Client as described herein; (ii) to the best of ALLTEL
Financial's knowledge after reasonable investigation, the Software,
when provided to Client by ALLTEL Financial, did not contain code
which would allow the remote disabling or inhibiting of the operation
of the Software or any code which had been introduced by a third party
and which would be classified as a computer "virus"; and (iii) the
Software, when provided to Client by ALLTEL Financial, shall be and
remain compatible with the then current IBM operating system in use at
Client's data center.
5.4 USER MANUALS. Prior to the installation of each Software
system, ALLTEL Financial will deliver to Client two copies of the
applicable User Manuals, and thereafter, two copies of standard
updates thereto. Client is responsible for the initial
personalization and for the maintenance, reproduction and distribution
of User Manuals. ALLTEL Financial hereby consents to the reproduction
of User Manuals by Client solely for the internal use of Client in
accordance with this Agreement.
5.5 THIRD PARTY SOFTWARE. ALLTEL Financial will use all computer
programs acquired by Client from third parties or developed by Client
without the assistance of ALLTEL Financial exclusively to process
Client's data. Additional use of such programs by ALLTEL Financial
shall require the written approval of Client. ALLTEL Financial
reserves the right to review and/or test such programs, in advance of
processing, to assure compatibility with ALLTEL Financial equipment
and consistency with ALLTEL Financial's processing techniques. Client
shall pay all license fees, purchase maintenance contracts for such
programs and pay for any required training. ALLTEL Financial shall be
responsible for managing the relationship with such third party
vendor, including entities with whom ALLTEL Financial has business
alliances. Client will indemnify ALLTEL Financial and hold ALLTEL
Financial harmless from any loss, claim, damage
5
11
or expense, including reasonable attorneys' fees, resulting from any
action brought or claim made by any third party claiming superior
title or right to protection of proprietary information in respect of
any such programs. ALLTEL Financial shall indemnify and hold Client
harmless from and against any loss, claim, damage or expense,
including reasonable attorneys' fees, arising from ALLTEL Financial's
unauthorized disclosure or misuse of such third party software in
violation of the provisions of any agreement governing the use of such
software to the extent that ALLTEL Financial has been made aware of
such provisions by Client.
5.6 INSTALLATION OF NEW SYSTEMS AND SUBSYSTEMS. ALLTEL Financial
will, at no additional fee hereunder, install regulatory changes,
updates, new systems and subsystems using the Resident Staff. ALLTEL
Financial will present to Client the features of and estimated hours
required to install such systems or subsystems. Client, at its
option, may elect to install the new system or subsystem or to
continue use of the then installed ALLTEL Financial-developed system.
5.7 MODIFICATIONS REQUESTED BY CLIENT. If requested by Client,
ALLTEL Financial agrees to provide Client with a quotation for
fees for the modification of the ALLTEL Financial-developed programs
installed for Client by ALLTEL Financial. Following Client's approval,
if such modifications require programming, such programming will be
provided by non-resident ALLTEL Financial staff in accordance with the
schedule of fees set out in Exhibit B. Implementation of such
Client-authorized modifications will be performed by the Resident
Staff. Client understands that modifications may require an increase
in the time of performance and/or the Resident Staff to subsequently
install ALLTEL Financial-developed updates, new systems or subsystems.
5.8 REGULATORY REPORTING REQUIREMENTS. Client agrees to make
ALLTEL Financial aware of any local, state or federal governmental
requirements not included in the requirements established by federal
banking regulatory authorities (which shall be provided by ALLTEL
Financial). Any changes needed (other than those to be provided by
ALLTEL Financial) will be handled in accordance with Section 5.7.
6. EDUCATION.
ALLTEL Financial will make available to Client personnel, its standard
application software training courses, which are generally held in
Little Rock, Arkansas or Orlando, Florida, in accordance with ALLTEL
Financial's Education and Training Department schedule, a current copy
of which will be provided to Client upon request. Client personnel
may attend such courses, and any other standard courses generally
offered by ALLTEL Financial to its other customers, upon payment of
ALLTEL Financial's then current published course fee, subject to
normal space availability requirements and compliance with ALLTEL
Financial's standard registration and enrollment deadlines and
procedures. Client will pay all of its travel and lodging expenses
while attending ALLTEL Financial courses.
6
12
7. STAFFING; COMPUTER USE.
7.1 RESIDENT TECHNICAL STAFF. ALLTEL Financial will provide,
included in the fees specified, five (5) members of the Resident Staff
and one (1) Account Manager ("Account Manager") to perform the
services described in this Agreement for Client at the Data Center.
Prior to the provision of such Account Manager or any replacement
thereof, ALLTEL Financial shall provide Client with the resume of such
potential Account Manager, shall provide Client the opportunity to
interview such potential Account Manager and provide comments and
ALLTEL Financial shall give due consideration to any concerns
expressed by Client. Prior to the transfer of any existing Account
Manager, ALLTEL Financial shall notify Client of such impending
transfer and shall give due considerations to any comments by Client
regarding such transfer. Subject to a reasonable time for
replacements in the event of resignations or terminations, ALLTEL
Financial will maintain such staffing levels throughout the term of
this Agreement. The members of the Resident Staff will be adequately
trained and qualified with sufficient work experience to perform the
services described herein. Duties of the Resident Staff shall
include, but are not limited to, installing the Software, installing
program updates, installing new systems and subsystems, writing and
maintaining Queries, daily run balancing and identifying
out-of-balance conditions to Client's designated accounting department
for reconciliation and resolution, help desk support, communication
and customer service, attending education classes, Client meetings and
research meetings, and coordinating and planning equipment and data
processing support for new branch installation, branch closings or
relocation. Client-requested program modifications and general
programming duties will be provided by non- resident Alltel personnel.
(a) Project Control - The Resident Staff will use a
project management system for Client projects, and ALLTEL
Financial will provide Client with output from such system as
frequently as weekly.
(b) Priorities - Client shall have the right to establish
all programming and project priorities. Changes in
priorities, however, which require reassignment of ALLTEL
Financial Resident Staff to other responsibilities may result
in an enlargement of ALLTEL Financial's time to complete
certain tasks hereunder.
(c) Resource Change Procedure - At Client's written
request, ALLTEL Financial will increase or decrease the
Resident Staff, as long as the staffing level is not less than
the minimum number set forth in Section 7.1, unless mutually
agreed upon or as described in Exhibit B. ALLTEL Financial
will promptly respond to Client's request with a proposed fee
schedule adjustment which shall be reasonable in light of the
related costs of salaries, recruiting, relocation, severance,
and employee benefits which are affected thereby. Quotations
for increases or decreases in the Resident Staff will be in
minimum increments of one
7
13
person for a minimum term of one year. ALLTEL Financial will
have up to 90 days to implement agreed changes in the Resident
Staff.
(d) Temporary Non-Resident Personnel - If Client does not
wish to re-order priorities to permit the Resident Staff to
perform additional services, or to direct ALLTEL Financial to
increase the Resident Staff, Client may request ALLTEL
Financial to provide additional non-resident personnel on
temporary basis and ALLTEL Financial will provide such
non-resident personnel on an "as-available" basis. ALLTEL
Financial will promptly respond with a quotation for such
non-resident personnel in accordance with Section 3 of Exhibit
B. If Client wishes to utilize the ALLTEL Financial personnel
services quoted, Client will notify ALLTEL Financial in
writing, authorizing ALLTEL Financial to provide such
services.
8. PERFORMANCE.
8.1 TIMELY INPUT AND OUTPUT. The parties agree that timely and
accurate submission of input and output is essential to satisfactory
performance under this Agreement. ALLTEL Financial's time of
performance shall be enlarged, if and to the extent reasonably
necessary, in the event that: (a) Client fails to submit input data
in the prescribed form or in accordance with the schedules set forth
in Exhibit D, (b) an act of God, malfunction of any equipment (unless
caused by the negligence or willful misconduct of ALLTEL Financial) or
other cause beyond the control of ALLTEL Financial prevents timely
data processing hereunder, (c) special requests by Client or any
governmental agency authorized to regulate or supervise Client impact
ALLTEL Financial's normal processing schedule; or (d) if Client fails
to provide any equipment, software, premises or performance called for
by this Agreement, and the same is necessary for ALLTEL Financial's
performance hereunder. ALLTEL Financial will notify Client of the
estimated impact on its processing schedule, if any.
8.2 RESPONSIBILITY FOR PROCESSING DATA. Client shall be solely
responsible for the input, transmission or delivery of all data to be
processed by ALLTEL Financial except when Client has expressly
retained ALLTEL Financial to perform such responsibility on Client's
behalf. Such information and data shall be submitted to ALLTEL
Financial in accordance with the forms and procedures agreed to
between the parties. With respect to data transmitted by Client which
is accurate and complete, ALLTEL Financial shall be responsible for
processing such data in accordance with the provisions of this
Agreement. With respect to data transmitted by Client which is
inaccurate or incomplete, but which a prudent business entity in the
same or similar business as ALLTEL Financial would determine to be
inaccurate or incomplete, ALLTEL Financial shall be responsible for
detecting such inaccuracy or lack of completeness and informing Client
prior to providing Client with the output of the processing of such
data. With respect to data transmitted by Client which is inaccurate
or incomplete, but which a prudent business entity in the same or
similar business as ALLTEL Financial would not determine to be
inaccurate or
8
14
incomplete, ALLTEL Financial shall not be liable for damages caused by
processing such information in an inaccurate or incomplete condition
except for other processing errors of ALLTEL Financial. In the event
of an error in processing Client's data resulting from a situation for
which ALLTEL Financial is responsible hereunder, ALLTEL Financial will
correct such error without charge to Client. Client shall use its
best commercially reasonable efforts to inform ALLTEL Financial in
writing promptly after receipt of records and other information from
ALLTEL Financial which Client does not have otherwise available, but
no later than the time for which ALLTEL Financial is required pursuant
to agreement between the parties to retain the history necessary to
correct such erroneous processing. In each case of erroneous
processing, where applicable, Client shall provide ALLTEL Financial
with such support as is reasonably required to perform the
corrections.
9. TERMINATION.
This Agreement may be terminated prior to the Expiration Date, as
follows:
9.1 RIGHT TO TERMINATE. In addition to any other rights which
either party may have in law or equity, either ALLTEL Financial or
Client may terminate this Agreement if the defaulting party fails to
cure any material default hereunder within sixty (60) days of written
notice from the other party (the "Cure Period"), specifying the nature
and extent of any such default.
9.2 METHOD OF TERMINATION. Exercise of the right to terminate
under Section 9.1 must be accomplished by specifying in such written
notice to the defaulting party, the nature and extent of such default
and fixing a date, on the last day of a month, not less than 90 days
following the conclusion of the Cure Period, unless the default has
been cured, for cessation of services hereunder (the "Termination
Date").
9.3 TERMINATION FOR ACQUISITION. In the event that Client is
acquired or has a change of ownership after the initial eighteen (18)
months of this Agreement, Client may terminate this Agreement with
ninety (90) days prior written notice to ALLTEL Financial which shall
terminate no earlier than the conclusion of the eighteen (18) month
period. In the event that Client so terminates this Agreement, fifty
percent (50%) of the remaining fees payable under this Agreement will
be due and payable as an early termination fee.
9.4 TERMINATION FOR OTHER REASONS. ALLTEL Financial agrees that
on or before 180 days after the Effective Date of this Agreement and
assuming that Client follows all recommendations of ALLTEL Financial,
ALLTEL Financial agrees that the Software will be performing
substantially in accordance with the applicable documentation and that
on line response time will generally be three (3) seconds or less. In
the event that ALLTEL Financial is not able to perform as described in
this Section, Client may terminate this Agreement with ten (10) days
prior written notice given within thirty (30) days after the
conclusion of such 180 day period. In the event of such termination,
9
15
neither party shall have any liability or obligation to the other,
except that ALLTEL Financial shall refund to Client a portion of the
original license fee paid by Client for the Software on a pro rata
basis using a 6 year straight line amortization schedule with the date
of the original license agreement as the beginning date.
9.5 TERMINATION FOR CONVENIENCE. Effective on or after the end of
the twenty-fourth month after the Effective Date , Client may
terminate this Agreement for convenience and without cause by giving
ALLTEL Financial six (6) months prior written notice (the "Early
Termination Notice") specifying the date of early termination ("Early
Termination Date") which shall be effective no earlier than the end of
the twenty-fourth month after the Effective Date. If Client elects to
terminate this Agreement pursuant to this Section, Client shall pay to
ALLTEL Financial a termination fee equal to the total of twenty-five
percent (25%) of the remaining stream of payments under this
Agreement. In addition, Client will reimburse ALLTEL Financial for
reasonable expenses actually incurred by ALLTEL Financial for
severance, bonuses for continued employment ("stay-pay") and
relocation. For purposes of this Section, the remaining stream of
payments will be the amount equal to the average of the three (3)
monthly invoices from ALLTEL Financial to Client for the three (3)
complete months prior to the receipt by ALLTEL Financial of the Early
Termination Notice times the number of months remaining from the Early
Termination Date provided for in the notice through and including the
Expiration Date.
10. TRANSITIONAL COOPERATION.
After notice of termination and prior to the Termination Date, or for
six months prior to the Expiration Date, ALLTEL Financial agrees that:
10.1 OFFER OF EMPLOYMENT. Client may offer employment to ALLTEL
Financial's Data Center employees.
10.2 TRANSITION. ALLTEL Financial will give full cooperation and
support to Client to assure an orderly and efficient transition to
whatever method of computer processing it may select.
10.3 ADDITIONAL SUPPORT. Client shall have the option, exercisable
prior to the Termination Date, to request up to 180 days of additional
technical support from ALLTEL Financial subsequent to the Termination
Date. Client will pay for such services at ALLTEL Financial's then
current Hourly Rates.
11. BACKUP, STORAGE, FILES AND PROGRAMS.
Files and Programs. ALLTEL Financial agrees to provide and maintain
adequate backup files on magnetic media of Client data and all
programs utilized to process Client's data.
10
16
11.1 STORAGE. Client agrees to provide off-site storage for backup
data files and programs. Client agrees to pick up the backup data
files and programs from the Data Center, deliver them to its off-site
storage location, store them, and return them to the Data Center
pursuant to mutually agreed upon procedures and schedules. If
requested by Client, ALLTEL Financial shall provide Client with a
quarterly listing of the names of data files and programs for
verification of the items in storage. Client is solely responsible
for the physical security of such files and programs while not in
ALLTEL Financial's possession.
11.2 DISASTER RECOVERY. Disaster recovery arrangements are
provided under separate agreement attached as Exhibit E. Such
arrangements are designed to deal with circumstances which are
expected to cause any substantial portion of the capabilities of the
Data Center to be unavailable for a consecutive period exceeding 72
hours. The fees for such disaster recovery services are included in
the monthly fees set out in Section 1 of Exhibit B. Any change in the
equipment configuration of Client's data center which is covered by
such disaster recovery services shall necessitate a change in the fees
hereunder.
12. EFFECTIVE PLANNING AND COMMUNICATION.
12.1 STEERING COMMITTEE. ALLTEL Financial and Client agree that
effective planning and communication are necessary to provide overall
direction for Client's data processing, and that each will work to
promote a free and open exchange of information between ALLTEL
Financial personnel, Client senior management and Client user
departments. Members of ALLTEL Financial's Data Center management and
the Resident Staff may participate actively with Client's management
and users in making and implementing day-to-day plans for Client's
data processing. In addition, a joint data processing steering
committee will be established to facilitate such planning and to
encourage a periodic review of priorities and long-term objectives.
ALLTEL Financial's account manager shall be a voting member of such
committee. In addition, if requested by Client, ALLTEL Financial's
account manager will serve as chairman of the data processing steering
committee, and will solicit input from the other members for
appropriate agenda items. ALLTEL Financial will maintain and
distribute copies of minutes of meetings of the data processing
steering committee. Client personnel who shall be members of such
committee shall include such senior management personnel as Client
deems appropriate from time to time. The data processing steering
committee shall meet regularly (initially, once per week).
12.2 AUDIT CONFERENCE. ALLTEL Financial will cooperate fully with
Client or its designee in connection with Client's audit functions or
with regard to examinations by internal and external auditors and
state and federal regulatory authorities. Client
11
17
acknowledges that ALLTEL Financial is not responsible for providing
audit services or for auditing Client's records or data. Following
any audit or examination, Client will conduct (in the case of an
internal audit), or instruct its external auditors or examiners to
conduct an exit conference with ALLTEL Financial and, at such time,
and as soon as available thereafter, to provide ALLTEL Financial with
a copy of the applicable portions of each report regarding ALLTEL
Financial or ALLTEL Financial's services (whether draft or final)
prepared as a result of such audit or examination. Client also agrees
to provide and to instruct its external auditors to provide ALLTEL
Financial, a copy of the portions of each written report containing
comments concerning ALLTEL Financial or the services performed by
ALLTEL Financial pursuant to this Agreement. In the event that ALLTEL
Financial performs an audit of Client's operation (and nothing herein
shall obligate ALLTEL Financial to do so), ALLTEL Financial shall
provide a copy of such audit report to Client.
13. PAYMENT AND BILLING.
Client agrees to pay ALLTEL Financial for the services performed
hereunder in accordance with the fees set forth in this Agreement,
Exhibit B and any modification or amendment made hereto, pursuant to
invoices prepared and delivered to Client. All processing fees shall
be payable on the first day of each month, for services to be rendered
during that month. All other fees shall be billed on the first day of
each month for services provided during the previous month. In the
event that Client, in good faith, disputes a billing under this
Agreement, Client will pay the undisputed portion of the billing,
notify ALLTEL Financial of such dispute prior to the time that the
payment for the disputed fee is overdue, shall specify in such notice
the reason for such dispute and such notice shall be signed by an
executive officer of Client. The parties shall cooperate to resolve
such dispute promptly and this Agreement shall not be terminated for
non-payment of the disputed amount during the resolution of the
dispute. Any interest on the disputed amount will be suspended during
the resolution of the dispute. In the event that the dispute is
ultimately resolved in favor of ALLTEL Financial, interest on the
amount which should have been paid will be added to such amount in
accordance with the terms of this Section.
14. NO INTERFERENCE WITH CONTRACTUAL RELATIONSHIP.
Client warrants that, as of the date hereof, it is not subject to any
contractual obligation that would prevent Client from entering into
this Agreement, and that ALLTEL Financial's offer to provide such
services in no way caused or induced Client to breach any contractual
obligation.
15. NO WAIVER OF DEFAULT.
The failure of either party to exercise any right of termination
hereunder shall not constitute a waiver of the rights granted herein
with respect to any subsequent default.
12
18
16. MERGERS AND ACQUISITIONS.
Upon written request by Client, ALLTEL Financial will process
additional data resulting from any merger or acquisition involving
either Client or any of its service bureau customers; subject to
Client's payment of additional mutually agreeable fees, if any,
applicable to related conversion, testing and processing services.
Client will notify ALLTEL Financial of any such proposed merger or
acquisition as soon as reasonably practicable.
17. ENTIRE AGREEMENT.
This Agreement and the exhibits hereto contain the entire agreement of
the parties and supersedes all prior agreements whether written or
oral with respect to the subject matter hereof. Expiration or
termination of any part of this Agreement shall terminate the entire
Agreement except for any portion hereof which expressly remains in
force and in effect notwithstanding such termination or expiration.
Modification or amendment of this Agreement or any part thereof may be
made only by written instrument executed by both parties.
18. ASSIGNMENT.
Neither party hereto shall assign, subcontract, or otherwise convey or
delegate its rights or duties hereunder to any other party without the
prior written consent of the other party to this Agreement, which
consent shall provide that it is subject to all the terms and
conditions of this Agreement. Subject to the provisions of Exhibit D,
no such consent shall be required in the event of a merger,
consolidation, sale of substantially all of the assets, or any other
change of control of either party hereto, in which event, this
Agreement shall apply to, inure to the benefit of, and be binding upon
the parties hereto and upon their respective successors in interest.
19. CONFIDENTIAL AGREEMENT.
This Agreement is a confidential agreement between ALLTEL Financial
and Client. In no event may this Agreement be reproduced or copies
shown to any third parties by either Client or ALLTEL Financial
without the prior written consent of the other party, except as may be
necessary by reason of legal, accounting or regulatory (including
Securities and Exchange Commission filings) requirements beyond the
reasonable control of ALLTEL Financial or Client, as the case may be,
in which event ALLTEL Financial and Client agree to exercise diligence
in limiting such disclosure to the minimum necessary under the
particular circumstances.
20. TAXES.
13
19
Unless Client shall submit a certificate of resale or exemption
evidencing Client's exemption from payment of all or part of such
taxes, Client will pay directly or reimburse ALLTEL Financial for all
sales, use or excise taxes, however designated, levied or based, on
amounts payable pursuant to this Agreement, including state and local
privilege or excise taxes based on gross revenues under this Agreement
or taxes on services rendered or personal property taxes on the
systems licensed hereunder. Client shall not be responsible for any
taxes levied on the personal property or net income of ALLTEL
Financial or for ALLTEL Financial's corporate franchise taxes. ALLTEL
Financial will cooperate with Client to structure transactions,
invoices or otherwise in a manner which seeks to minimize the impact
on Client of the taxes described in this Section. Client will
indemnify ALLTEL Financial against any liability or expense of any
nature resulting from the cooperation described above. In the event
that ALLTEL Financial receives any tax statement, invoice, assessment
or other evidence of taxes owed by Client hereunder from any
appropriate taxing authority, ALLTEL Financial shall promptly provide
such correspondence to Client.
21. INDEPENDENT CONTRACTOR.
It is agreed that ALLTEL Financial is an independent contractor and
that:
21.1 CLIENT SUPERVISORY POWERS. Client has no power to supervise,
give directions or otherwise regulate ALLTEL Financial's operations or
its employees, except as herein provided for security of Client's data
and detection of errors in processing.
21.2 ALLTEL FINANCIAL'S EMPLOYEES. Persons who process Client's
data are employees of ALLTEL Financial and ALLTEL Financial shall be
solely responsible for payment of compensation to such personnel and
for any injury to them in the course of their employment. ALLTEL
Financial shall assume full responsibility for payment of all federal,
state and local taxes or contributions imposed or required under
unemployment insurance, social security and income tax laws with
respect to such persons.
21.3 ALLTEL FINANCIAL AS AN AGENT. ALLTEL Financial is not an
agent of Client and has no authority to represent Client as to any
matters, except as authorized herein.
22. CLIENT AND ALLTEL FINANCIAL EMPLOYEES.
Except as specifically set forth in Section 10, above, both Client and
ALLTEL Financial agree not to offer employment to any employee of the
other without the prior written consent of the other.
23. PREVIOUS LIABILITIES.
14
20
The parties hereto agree to indemnify the other and hold the other
harmless against any loss (including attorney's fees and expenses)
arising out of any claims or lawsuits filed or subsequently filed as a
result of the acts of the other party which occurred prior to the
Effective Date of this Agreement.
24. NOTICES.
All notices, requests and demands, other than routine operational
communications under this Agreement, shall be in writing and shall be
deemed to have been duly given when deposited in the United States
mail, registered or certified postage prepaid, and addressed to the
other party at the address first shown above and to the attention of
the president of said party. Notice of changes of address, if any,
shall be given in like manner.
25. COVENANT OF GOOD FAITH.
ALLTEL Financial and Client agree that, in their respective dealings
arising out of or related to this Agreement, they shall act fairly and
in good faith.
26. LIMITATION OF LIABILITY.
If either party shall breach any covenant, agreement or undertaking
required of it by this Agreement, the liability of such party shall be
limited to direct damages, actually incurred. Except for liability
resulting from an indemnity given pursuant to this Agreement neither
party shall be liable to the other for any special or consequential
damage or for any claim or demand made by any third party.
27. INSURANCE.
A schedule of ALLTEL Financial's current insurance coverage has been
furnished to Client prior to the Effective Date of this Agreement.
28. SECTION TITLES.
Section titles as to the subject matter of particular sections herein
are for convenience only and are in no way to be construed as part of
this Agreement or as a limitation of the scope of the particular
sections to which they refer.
29. COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which shall constitute
one and the same instrument.
30. FINANCIAL STATEMENTS.
15
21
Annually, ALLTEL Financial will provide to Client a copy of ALLTEL
Financial's annual financial statements, which may be on a
consolidated basis.
31. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of North Carolina.
32. FUTURE BUSINESS ARRANGEMENTS.
In the event that the parties agree to provide service bureau
processing to other finance companies using the practices and
procedures of Client, the Data Center and ALLTEL Financial's Software
provide hereunder, the parties will cooperate in good faith to reach a
mutually agreeable relationship.
33. DISPUTE RESOLUTION AND ARBITRATION.
Disputes under this Agreement shall be resolved in the following
manner:
33.1 INFORMAL DISPUTE RESOLUTION. If any dispute should arise
concerning performance under or interpretation of this
Agreement, then, prior to, and as a condition to a party's
right to initiate any action pursuant to paragraph 33.2 below,
the parties shall take the following steps in an attempt to
informally resolve any such dispute:
(a) At the written request of either party, the senior
managers of the parties assigned to the data
processing matters contemplated by this Agreement
shall meet in person and shall present to each other
a written summary, reflecting in reasonable detail,
the nature and extent of the dispute in question (the
"Dispute Notice"). Such an in-person meeting shall
take place with five (5) days of receipt of the
request.
(b) If within three (3) days following the meeting held
pursuant to paragraph (a) above, said dispute is not
resolved, or if for any reason the meeting
contemplated by paragraph (a) has not been held as
contemplated thereby, then the matter in dispute
shall be presented to the president of ALLTEL
Financial and to the president of Client for
resolution. Said presidents shall hold an in-person
meeting within three (3) business days following a
written request by either party which meeting shall
include a presentation of the written descriptions of
the dispute contemplated by paragraph (a).
(c) If any dispute remains unresolved after ten days
following the initial request for informal dispute
resolution, then either party may, as contemplated by
Section 33.2, initiate a binding arbitration
proceeding.
16
22
33.2 ARBITRATION. ALLTEL Financial and Client stipulate and agree
that if they are unable to resolve any controversy arising
under this Agreement as contemplated by Section 33.1(a) and if
such controversy is not subject to Section 33.3 of this
Agreement, then such controversy and any ancillary claims not
so resolved and not so subject shall be submitted to mandatory
and binding arbitration at the election of either party (the
"Disputing Party") pursuant to the following terms and
conditions.
(a) Selection of Arbitrator - The Disputing Party shall
notify the American Arbitration Association (the
"AAA") in writing and shall request that the AAA
furnish to the parties a list of five possible
arbitrators who must have experience in data
processing matters and none of whom may have had any
association with either party as an employee, agent or
contractor within the prior five year period. Each
party shall have fifteen (15) days to reject two of
the proposed arbitrators. If one individual has not
been so rejected, he or she shall serve as arbitrator;
if two or more individuals have not been so rejected,
the AAA shall select the arbitrator from those
individuals.
(b) Conduct of Arbitration - Arbitration will be
conducted in Greenville, North Carolina by the
arbitrator selected pursuant to subparagraph 33.2(a)
over the dispute described in the Dispute Notice and
any other disputes related to this Agreement between
the parties to this Agreement (1) pending at the
inception of such arbitration and not otherwise being
arbitrated under this paragraph 33.2; or (2) arising
during the pendency of such arbitration, in
accordance with the rules of the AAA, except as
specifically provided otherwise in this paragraph
33.2. In particular and without limitation, the
parties hereto hereby affirm and agree to comply with
those rules of the AAA which limit pre-hearing
discovery. The arbitrator will have no power or
authority, under the rules of the AAA or otherwise,
to amend or disregard any provision of this paragraph
33.2.
(c) Replacement of Arbitrator - Should the arbitrator
refuse or be unable to proceed with arbitration
proceedings as called for by this paragraph 33.2,
such arbitrator shall be replaced by an arbitrator
selected from the other four arbitrators originally
proposed by the AAA and not rejected by the parties,
if any, or if there are no remaining proposed
arbitrators who have not been rejected, by repeating
the process of selection. If an arbitrator is
replaced pursuant to this subparagraph 33.2(c), then
a rehearing shall take place in accordance with the
rules of the AAA.
17
23
(d) Findings and Conclusions - The arbitrator rendering
judgment upon disputes between parties to this
Agreement as provided in this paragraph 33.2 shall,
after reaching judgment and award, if any, prepare
and distribute to the parties to such disputes a
writing describing the findings of fact and
conclusions of law relevant to such judgment and
award and containing an opinion setting forth the
reasons for the giving or denial of any award.
(e) The arbitrator is hereby instructed that time is of
the essence in the arbitration proceeding, and that
the arbitrator shall have the right and authority to
issue monetary sanctions against either of the
parties if, upon a showing of good cause therefor,
said party is unreasonably delaying the proceeding.
(f) The arbitrator shall render his or her judgment or
award within twenty (20) days following the
conclusion of the arbitration proceeding.
(g) Recognizing the express desire of the parties for an
expeditious means of dispute resolution, the
arbitrator shall limit or allow the parties to expand
the scope of discovery as may be reasonable under the
circumstances.
33.3 LITIGATION.
(a) Immediate Injunctive Relief - The parties to
this Agreement hereby agree that the only
circumstance in which disputes between them will not
be subject to the provisions of this paragraph 33 is
where a party makes a good faith determination that a
breach of the terms of this Agreement by another party
is such that the damages to such party resulting
therefrom will be so immediate, so large or severe and
so incapable of adequate redress after the fact that a
temporary restraining order and/or other immediate
injunctive relief is the only adequate remedy for such
breach.
(b) Jurisdiction - The parties hereto hereby
consent to the jurisdiction of the federal district
court residing in either Little Rock, Arkansas or
Greenville, North Carolina for all litigation which
may be brought with respect to the terms of and the
transactions and relationships contemplated by this
Agreement. The parties hereto further consent to the
jurisdiction of any state court the district of which
encompasses assets of a party against which a
judgment has been rendered, either through
arbitration or through litigation, for the
enforcement of such judgment against such assets of
such party.
18
24
33.4 COSTS AND ATTORNEY'S FEES. Notwithstanding any rule of the
AAA to the contrary, the arbitrator rendering judgment upon
disputes between parties to this Agreement as provided in
paragraph 33.2 shall have the power to award all costs and
attorneys' fees between the parties subject to such disputes.
IN WITNESS WHEREOF, this Agreement has been executed by the
undersigned officers, thereunto duly authorized, on the ______________ day of
June, 1996.
ALLTEL FINANCIAL INFORMATION SERVICES, INC. REGIONAL ACCEPTANCE CORPORATION
BY: BY:
------------------------------------- --------------------------------------
NAME: NAME:
------------------------------------- --------------------------------------
TITLE: TITLE:
------------------------------------- --------------------------------------
DATE: DATE:
------------------------------------- --------------------------------------
19
25
Client: Regional Acceptance Corp.
Effective Date: July 1, 1996
EXHIBIT "A"
REPORTS
1. CURRENT REPORTS.
The reports or output from Client's present systems will be produced
by ALLTEL Financial during the term of this Agreement, unless such
system(s) are replaced in accordance with the terms of this Agreement
or by mutual agreement between the parties.
2. ALLTEL FINANCIAL REPORTS.
Client may select from among the reports available for each of the
application systems listed in Exhibit A, as set forth in the standard
ALLTEL Financial user documentation thereof.
3. ADDITIONAL REPORTS.
ALLTEL Financial will add or delete from either the ALLTEL Financial
or current reports at Client's request, or to change the frequency of
their preparation. If the cumulative effect of changes in requested
reports requires personnel and/or computer equipment in excess of that
required without such changes, ALLTEL Financial agrees to notify
Client and prepare a price quotation, based upon the costs of such
additional computer equipment. Upon receipt of authorization from
Client in writing, ALLTEL Financial will immediately proceed to
acquire such additional personnel and/or equipment and prepare and
deliver all such reports.
A-1
26
Client: Regional Acceptance Corp.
Effective Date: July 1, 1996
EXHIBIT "B"
CHARGES
1. FEE SCHEDULE.
Client will pay ALLTEL Financial, a minimum fee of $2,064,060 payable
in monthly installments as set forth in the following table:
Applicable Period Amount of Monthly Payment
----------------- -------------------------
Month 1-60 $34,401
In addition to the fees described above, Client agrees to promptly
reimburse ALLTEL Financial for actual costs incurred by ALLTEL Financial for
normal data center startup expenses in the preparation and performance of this
Agreement. Such costs will include but not be limited to relocation,
recruiting, training, temporary living expenses and other costs normally
associated with a data center startup whether similar or dissimilar to the
expenses listed above. ALLTEL Financial shall provide Client with invoices or
other sufficient evidence of such expenses. ALLTEL Financial shall provide
Client with an estimate of the expenses to be reimbursed in accordance with
this paragraph and shall notify Client when such expenses actually incurred
exceed 75% of such estimate and will cooperate with Client to minimize the
impact of such expenses.
In the event that the number of loans being processed for Client
hereunder decreases to less than fifty percent (50%) of the number being
processed as of the Effective Date and such decrease is directly attributable
to a decline in Client's business and is not attributable to Client's ceasing
business, selling or transferring assets or portfolios of loans or other
voluntary acts and application of the foregoing charges is deemed inequitable
by either party, ALLTEL Financial and Client will promptly negotiate in good
faith to resolve such inequity.
2. ADDITIONAL RESPONSIBILITIES OF THE PARTIES.
Except as otherwise provided, Client is responsible for the operation of any
of its data processing facilities other than the Data Center. Such facilities
are hereinafter termed "remote". Client and ALLTEL Financial agree to provide
or perform their respective responsibilities as indicated below.
B-1
27
RESPONSIBILITY MATRIX
ALLTEL CLIENT
FINANCIAL
Provide Facilities, Furniture, Fixtures & Equipment X
Provide Data Center Environmentals (Utilities, Security,
Janitorial) X
Provide Computer Equipment and Maintenance
X
Provide Data Communications Equipment and Data Lines
X
Provide Voice Communications Equipment and Lines
X
Provide Tapes, Ribbons, Disk Media, Operations Supplies
X
Provide Microfiche Processing or Optical Data
Storage/Retrieval X
Provide Network Control Equipment X
Provide PC/LAN Systems Equipment & Maintenance X
Provide Personal Computers & Terminals X
Provide Account Manager X
Provide Computer Operations X
Provide Help Desk Personnel X
Provide Host Computer Operations Staff X
Provide Data Center Network Control Staff X
Provide Project Management Services X
Provide Host Application/ALLTEL Staff Training X
Provide Client Staff Training X
Provide Secretarial Support X
Recruiting, Relocation Expenses - ALLTEL Staff X
Staff Replacement Expenses - ALLTEL Staff- for Data Center X
Start Up and Close Down
Provide Host Computer Operating System Software X
Provide Environmental Software/Third Party System Software
X
Provide Data & Voice Communications Software & Maintenance
X
Provide ALLTEL Application Software Maintenance
X
Provide PC/LAN Software & Maintenance X
Provide Personal Computer Software X
Provide Data Security X
Provide Stock Computer Paper and Supplies X
Provide Special Forms, Statements, Etc. X
Provide Personal Property Taxes & Insurance On Equipment
X
Provide Office Supplies, Equipment, Postage & Express Mail
B-2
28
Provide Off-Site Storage Services X
Provide Disaster Recovery/Business Resumption Services
X
Provide ALLTEL Application Technical Documentation
X
Mainframe System Application Development Support -ALLTEL
Applications X
End-User Computing X
Help Desk X
Personal Computer & Local Area Network Support X
Client/Server Support X
Methods and Procedures End-User X X
Business Recovery/Risk Management X
Text Processing X
Telecommunications Support X
Systems Programming Support X
Computer Operations X
Provide Application Development Standards and Processes
X
Provide Source Library Management X
Provide Software Development Methodology X
Provide Mainframe System Personnel Resources for
Development & Testing X
Provide User Resources for Project Participation X
Provide Project Business Requirements & Definition X
Provide Project Management Methodology X
Provide Testing Methodology, Standards & Procedures
X
Provide Project Prioritization and direction X
Assist Client in Capacity Planning X
Assist Client in Application Performance Tuning X
Install Application Updates X
Install New Application Subsystems X
Provide Application Maintenance Support (Bugs, Corrections)
X
Provide Off-Hours Application Support for Production
X
B-3
29
3. ALLTEL FINANCIAL HOURLY RATES.
The following hourly rates are currently in effect. The ALLTEL
Financial hourly rates may be changed by ALLTEL Financial upon written
notice to Client not more often than once during each twelve month
period following the Effective Date. ALLTEL Financial's Hourly Rates
for programming include all related computer time required for program
testing. Overtime rates are only applicable, if and to the extent,
ALLTEL Financial will incur overtime expense. ALLTEL Financial fees
are computed by multiplying the actual personnel hours expended on
Client's project(s) including any travel time (not to exceed 4 hours
each way) to and from Client location(s). In addition, Client agrees
to reimburse ALLTEL Financial for the actual expense of reasonable
travel and lodging expense, if any, related to hourly rate based
services requested by Client. ALLTEL Financial will inform Client, in
advance, if overtime or travel and lodging expense is anticipated to
be incurred. ALLTEL Financial shall not provide services which would
result in fees charged pursuant to this Section without Client's prior
approval.
Regular Hourly Overtime Hourly Minimum Billable
Rate Per Person Rate Per Person Increment Per
Person
Programmer $105.00 $158.00 $105.00
Computer Operators $ 60.00 $ 90.00 $ 60.00
In addition, Client will pay all reasonable travel and subsistence
costs incurred by ALLTEL Financial's employees in performance of any
such additional services.
4. PRICE ADJUSTMENT.
The parties acknowledge that ALLTEL Financial's costs of providing
services pursuant to this Agreement are likely to increase,
particularly in the areas of data processing salaries and operating
system maintenance. The fees and charges reflected in this Agreement
will be increased, but not decreased, to compensate ALLTEL Financial
for such inflation based upon changes in the Consumer Price Index for
All Urban Consumers - Other Goods and Services (the "CPI-U") as
published by the U. S. Department of Labor, Bureau of Labor
Statistics. Effective June, 1997 (the thirteenth contract month),
such fees and charges shall be increased by the percentage increase in
the CPI-U over the one-year period ended January 31, 1997 (the eighth
contract month). Semi-annually
B-4
30
thereafter, such fees and charges shall be further increased by the
percentage increase in the CPI-U for the corresponding six-month
periods ended July and January, respectively. In no event, however,
shall the price increase effective for the thirteenth contract month
be more than 10% or less than 5.0% nor shall any subsequent
semi-annual increase be more than 5% or less than 2.50%.
B-5
31
Client: Regional Acceptance Corp.
Effective Date: July 1, 1996
EXHIBIT "C"
REPORTING SCHEDULE
To be determined and attached in accordance with Section 3.4 of the Agreement.
C-1
32
Client: Regional Acceptance Corp.
Effective Date: July 1, 1996
EXHIBIT "D "
SOFTWARE LICENSE AGREEMENT
1. PROVISION OF SOFTWARE.
1.1 ALLTEL Financial agrees to license and furnish to Client the
ALLTEL Financial application systems as described in the
Agreement if such systems are installed prior to the
expiration or termination of the Agreement. Such application
systems are hereinafter referred to as the "Software".
2. DOCUMENTATION.
2.1 For each item of Software, ALLTEL Financial shall also deliver
to Client a complete set of standard operational instructions
and documentation, including, but not limited to, the Software
source code in machine readable form; a copy of ALLTEL
Financial's standard associated control statements used for
operation, development, maintenance and use of the source
code, and any other documentation which is provided by ALLTEL
Financial to its other similar customers. Such documentation
and other materials are hereinafter referred to as
"Documentation."
2.2 Subject to the provision of Section 4, below, ALLTEL Financial
agrees to deliver to Client copies of any revisions,
improvements, enhancements, modifications and updates to the
Documentation which are produced by ALLTEL Financial.
2.3 Client may copy the Documentation provided hereunder in order
to satisfy its own internal requirements. If Client requests,
ALLTEL Financial agrees to furnish additional copies to Client
at ALLTEL Financial's then standard fee for such copies.
3. TERM AND USE RESTRICTIONS.
3.1 This is a perpetual license. Client acknowledges that the
licensed Software and all related Documentation constitute
valuable assets and trade secrets of ALLTEL Financial and that
all information with respect thereto is confidential. The
D-1
33
Software is licensed to Client only for use by Client for
itself, its subsidiaries and affiliates.
3.2 Client agrees to safeguard the licensed Software with at least
the same degree of care that it exercises with respect
to its own confidential and proprietary information, and shall
take all reasonable precautions to assure that its employees
and representatives do not sell, lease, assign, or otherwise
transfer, disclose or make available, in whole or in part, the
licensed Software or Documentation thereof to any third party
for any reason (except for employees of Client, for auditing
purposes by independent certified public accountants, for
complying with applicable governmental laws, regulations or
court orders or for the limited disclosure to customers of
Client of user manuals and similar information which must be
disclosed in connection with providing data processing services
by Client). In no event, however, shall any competitor of
ALLTEL Financial be furnished with any information,directly or
indirectly, concerning the Software or the Documentation.
3.3 The licensed Software and all related Documentation and
materials may be used by Client and maintained at one
location, only as set forth below (the "Installation Site")
and may not be used by Client or any other person at any other
location or facility; provided, however, that Client may
change the location where it uses the licensed Software upon
prior written notice to ALLTEL Financial and delivery of a
written certificate that all use of the licensed Software
shall be limited to such new location. The Installation Site
shall be as follows:
3.4 All modifications to the licensed Software developed as a
result of joint efforts by ALLTEL Financial and Client shall
become the exclusive property of ALLTEL Financial, subject to
all of the terms and conditions of this License Agreement,
including the right of Client to use such modifications in
accordance herewith and including the foregoing agreements of
Client with respect to disclosure of and/or access to such
modifications. Modifications to the licensed Software
developed solely by Client without the participation of ALLTEL
Financial shall be considered to be part of the Software for
purposes of determining Client's obligations under this
Section 3; provided, however, that Client shall have the
exclusive right to use any such modifications it may develop,
and ALLTEL Financial shall have no right to market such
modifications without Client's express written consent.
3.5 Client further acknowledges and agrees that, in the event of a
breach or threatened breach by Client of any provision of this
Section 3, ALLTEL Financial will have no adequate remedy in
money or damages and, accordingly, shall be entitled to
appropriate injunctive relief. However, no specification in
this License Agreement of a specific legal or equitable remedy
shall be construed as a waiver
D-2
34
or prohibition against any other legal or equitable remedies
in the event of a breach of any provision of this Agreement.
3.6 ALLTEL Financial retains title to the Software provided
hereunder and does not convey any rights or proprietary
interest therein to Client, other than the license as
specified herein.
3.7 Upon the termination by ALLTEL Financial of this License
Agreement or any licenses granted to Client hereunder, Client
agrees to promptly cease using and return to ALLTEL Financial
all software involved and Documentation related thereto and
all copies thereof. Such return shall also be accompanied by
a written certificate, signed by an appropriate executive
officer of Client, to the effect that all such Software,
related Documentation and copies thereof have been so returned
to ALLTEL Financial.
3.8 ALLTEL Financial hereby acknowledges and agrees that Client
shall have the right to modify any of the Software provided to
Client hereunder and may use and combine such with other
programs and/or material to form an updated work. Such
modifications to the licensed Software, either alone or in
combination, shall become part of the licensed Software and
shall be subject to all of the terms and conditions of this
License Agreement, including the right of Client to use such
modifications in accordance herewith and including the
agreement of Client to limit the use of, the disclosure of
and/or access to, such modifications.
3.9 Client acknowledges that all PC-based Software ("Micro
Software") is released in object code only. The following
additional provisions shall be applicable to Micro Software:
(a) Client may copy the Micro Software and use it on
multiple microprocessors solely for the
benefit of Client and Client's affiliates including,
but not limited to, Client's parent holding company,
its subsidiaries and affiliates. The documentation
for the Micro Software may be similarly copied and
utilized. At Client's option, additional copies may
be made either by Client or by ordering the same from
ALLTEL Financial at ALLTEL Financial's standard rates.
(b) All other restrictions on use, copying or disclosure
of the Software licensed hereunder shall also apply
to the Micro Software and its documentation. In
addition, Client may not provide data processing
services using the Micro Software to any person,
firm, or corporation (other than Client's affiliates
and subsidiaries) without the prior written consent
of ALLTEL Financial and the payment to ALLTEL
Financial of additional license fees.
D-3
35
(c) In consideration of the right to make and use the
additional copies granted in Section (a) above,
Client agrees and acknowledges that all support for
end-users of the Micro Software will be supplied by
Client's personnel, and that ALLTEL Financial is not
responsible for providing any Micro Software support
services to end-users.
4. ENHANCEMENTS.
Within ninety (90) days of its delivery of a termination notice, as
provided in the Agreement, or within ninety (90) days preceding the
Expiration Date, as set forth in the Agreement, Client may elect to
purchase program maintenance from ALLTEL Financial for the licensed
Software. All updates, modifications and enhancements (the "Updates")
to the Software, if any, (once incorporated into any Software
hereunder) shall be deemed to be part of the license Software for all
purposes hereunder. In the absence of Client's purchase of program
maintenance thereafter, ALLTEL Financial shall not be obligated to
deliver Updates or related Documentation to Client. If Client
exercises this option, Client agrees to pay ALLTEL Financial its
current software maintenance rate(s) then in effect for such
system(s).
5. WARRANTIES.
5.1 ALLTEL Financial warrants to Client that: (i) ALLTEL Financial
has the right to furnish the Software, Documentation and other
materials provided to Client hereunder free of all liens,
claims, encumbrances and other restrictions; (ii) Client shall
quietly and peacefully possess the Software, Documentation and
other materials provided to Client hereunder, subject to and
in accordance with the provisions of this License Agreement;
and (iii) Client's use and possession of the Software,
Documentation and other materials provided to Client hereunder
will not be interrupted or otherwise disturbed by any entity
asserting a claim under or through ALLTEL Financial.
5.2 ALLTEL Financial warrants and represents that the licensed
Software will perform, on an appropriately configured IBM
computer system, in the manner described in the Documentation
thereof.
5.3 EXCEPT AS PROVIDED HEREIN, ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED AND
EXCLUDED.
6. GENERAL.
6.1 Taxes. Client agrees to pay all taxes levied by a duly
constituted taxing authority against or upon Client's use of
the Software or arising out of this License
D-4
36
Agreement; exclusive, however, of taxes based on ALLTEL
Financial's income, which taxes shall be paid by ALLTEL
Financial. Client agrees to pay any tax for which it is
responsible hereunder, which may be levied on or assessed
against Client directly, and, if any such tax is paid by
ALLTEL Financial, to reimburse ALLTEL Financial therefore,
upon receipt by Client of proof of payment reasonably
acceptable to Client.
6.2 Patent and Copyright Infringement. ALLTEL Financial agrees to
defend and/or handle, at its own expense, any claim or action
brought by any third party against Client for actual or
alleged infringement of any patent, copyright or similar
property right (including, but not limited to,
misappropriation of trade secrets) based upon the Software or
Documentation furnished hereunder by ALLTEL Financial. ALLTEL
Financial further agrees to indemnify and hold Client harmless
from and against any and all liabilities, losses, costs,
damages, and expenses (including reasonable attorneys' fees)
associated with any such claim or action incurred by Client.
(a) ALLTEL Financial shall have the sole right to conduct
the defense of any such claim or action and all
negotiations for its settlement or compromise, unless
otherwise mutually agreed to in writing between the
parties hereto.
(b) ALLTEL Financial agrees to give Client prompt written
notice of any written threat, warning or notice of
any such claim or action against ALLTEL Financial or
any other use or any supplier or components of the
Software covered hereunder, which could have an
adverse impact on Client's use of same, provided
ALLTEL Financial knows of such claim or action.
6.3 Limitation of Liability. Except for the violation of the
provisions of Section 3.2, 3.3, 3.4 or 6.2, if either party
shall breach any covenant, agreement or undertaking required
of it by this License Agreement, the liability of such party
to the other shall be limited to direct damages, actually
incurred. In addition, neither party shall be liable for any
special or consequential damage suffered by the other party
nor liable for any claim or demand made by any third party.
6.4 Material Breach. In the event of any material breach of the
Agreement or of this License Agreement by Client, ALLTEL
Financial may (reserving cumulatively all other remedies and
rights under this License Agreement in law or in equity)
terminate this License Agreement, in whole or in part, by
giving ninety (90) days' prior written notice thereof;
provided, however, that this License Agreement shall not
terminate at the end of said ninety day notice period if
Client has substantially cured the breach of which it has been
notified prior to the expiration of said ninety (90) days. In
the event of such a termination by ALLTEL Financial pursuant
to this Section 6.4, Client will promptly discontinue its use
of the
D-5
37
licensed Software and related Documentation and shall return
to ALLTEL Financial all copies thereof in its possession or
control. Such return shall also be accompanied by a written
certificate, signed by an appropriate executive officer of
Client, to the effect that all such Software, related
Documentation and copies thereof has been so returned to
ALLTEL Financial. In addition, Client agrees that monetary
damages will not be sufficient to compensate ALLTEL Financial
in the event of any actual or threatened breach by Client of
any restriction on Client's use of the licensed Software or
Documentation provided in this License Agreement and that, in
such event, ALLTEL Financial shall be entitled to injunctive
and other equitable relief which may be deemed necessary or
appropriate by any court of competent jurisdiction.
6.5 Bankruptcy. Notwithstanding anything in this License
Agreement to the contrary, either party hereto shall
have the right to immediately terminate this License Agreement
upon notice to the other in the event of the other's
insolvency; receivership; or voluntary or involuntary
bankruptcy; in the event of the institution of proceedings
therefor, or in the event of assignment for the benefit of
creditors; or in the event any substantial part of the other's
property is or becomes subject to any levy, seizure, assignment
or sale for or by any creditor or governmental agency without
being released or satisfied within thirty (30) days
thereafter. In the event of such a termination by ALLTEL
Financial pursuant to this Section 6.5, Client will promptly
discontinue its use of the licensed Software and related
Documentation and shall return to ALLTEL Financial all copies
thereof in its possession or control. Such return shall also
be accompanied by a written certificate, signed by an
appropriate executive officer of Client, to the effect that all
such Software, related Documentation and copies thereof have
been so returned to ALLTEL Financial. Notwithstanding the
foregoing, no such termination shall have any effect upon
Client's obligation to pay ALLTEL Financial any amount due
hereunder.
6.6 Notices. Any notices or other communications required or
permitted to be given or delivered under this License
Agreement shall be in writing (unless otherwise specifically
provided herein) and shall be sufficiently given if delivered
personally or mailed by first-class mail, postage prepaid,
If to Client: Regional Acceptance Corporation
3004 South Memorial Drive
Greenville, North Carolina 27834
Attention: Robert D. Barry
If to ALLTEL Financial: ALLTEL Financial Information Services, Inc.
4001 Rodney Parham Road
D-6
38
Little Rock, Arkansas 72212-2496
Attention: President
or to such other address as either party may from time to time
designate to the other by written notice. Any such notice or
other communication shall be deemed to be given as of the date
it is personally delivered or when placed in the mails in the
manner specified.
6.7 Advertising or Publicity. Neither party shall use the name of
the other in advertising or publicity releases without
securing the prior written consent of the other.
6.8 Assignment. This License Agreement shall be binding upon the
parties and their respective permitted successors and assigns.
Client may not sell, assign, convey or transfer, by operation
of law or otherwise, any of its rights or obligations
hereunder without the prior written consent of ALLTEL
Financial and any such attempted transfer shall be void.
6.9 Governing Law; Jurisdiction and Venue. The validity of this
License Agreement, the construction and enforcement of its
terms, and the interpretation of the rights and duties of the
parties shall be governed by the laws of the State of
Arkansas. Client and ALLTEL Financial hereby consent and
agree that jurisdiction and venue for any claim or cause of
action arising under this Agreement with respect to the
validity, construction or enforcement hereof shall be properly
and exclusively in the state or federal courts located in
Pulaski County, Arkansas, and expressly waive any and all
rights they may have or which may hereafter arise to contest
the propriety of such choice of jurisdiction and venue.
6.10 Modification, Amendment, Supplement and Waiver. No
modification, amendment, supplement to or waiver of this
License Agreement or any of its provisions shall be binding
upon the parties hereto unless made in writing and duly signed
by both parties or the party to be charged, as appropriate
under the circumstances. A failure or delay of either party to
this License Agreement to enforce at any time any of the
provisions hereof, or to exercise any option which is herein
provided, or to require at any time performance of any of
theprovisions hereof, shall in no way be construed to be a
waiver of such provision of this License Agreement.
6.11 Severability. In the event any one or more of the provisions
of this License Agreement shall for any reason be held to be
invalid, illegal or unenforceable, the remaining provisions of
this License Agreement shall be unimpaired, and the invalid,
illegal or unenforceable provision shall be replaced by a
mutually acceptable provision, which being valid, legal and
enforceable, comes closest to
D-7
39
the intention of the parties underlying the invalid, illegal
or unenforceable provision.
6.12 Headings. The headings in this License Agreement are for
purposes of reference only and shall not in any way limit or
affect the meaning or interpretation of any of the terms
hereof.
D-8
40
IN WITNESS WHEREOF, the parties hereto have executed this License
Agreement as of the day, month and year first above written, by the undersigned
officers thereunto duly authorized.
ALLTEL FINANCIAL INFORMATION REGIONAL ACCEPTANCE
SERVICES, INC. CORPORATION
By: By:
-------------------------------- --------------------------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
-------------------------------- --------------------------------
Date: Date:
-------------------------------- --------------------------------
D-9
41
Client: Regional Acceptance Corporation
Effective Date: July 1, 1996
EXHIBIT E
DISASTER RECOVERY AGREEMENT
This is a Disaster Recovery Agreement (the "Agreement") made and
entered into contemporaneously with the Data Processing Agreement (the "FM
Agreement"), dated as of the first day of July, 1996, between ALLTEL
Information Services, Inc., an Arkansas corporation, 4001 Rodney Parham Road,
Little Rock, Arkansas, 72212-2496 (hereinafter "ALLTEL") and
Regional Acceptance Corporation
3004 S. Memorial Drive
Greenville, NC 27834
(hereinafter "CLIENT").
WHEREAS, ALLTEL maintains a computer disaster recovery facility for
use by Subscribing Clients in the event of a Disaster (see definitions, below);
and
WHEREAS, CLIENT wishes to have access to such computer disaster
recovery facility in the event of a Disaster;
NOW THEREFORE, in consideration of the payments to be made and
services to be performed hereunder, the parties agree as follows:
1. DEFINITIONS. The terms and phrases listed below shall have the indicated
special meanings when used in this Agreement:
"DISASTER RECOVERY FACILITY" -- The Computer Equipment described in
Attachment 2 and located at ALLTEL's corporate headquarters.
"DATA CENTER" -- CLIENT's IBM-based computer facility located at:
3004 S. Memorial Drive
Greenville, NC 27834
"DISASTER" -- Any interruption in the availability or accessibility
of the Data Center, resulting from causes beyond CLIENT's control and
reasonably expected to last more than seventy-two (72) continuous hours.
E-1
42
"MULTIPLE DISASTER" -- Disasters experienced by two or more
Subscribing Clients at times when such Subscribing Clients would be
entitled to use the Disaster Recovery facility at the same time.
"SHELL FACILITY" -- Preconditioned space suitable for the
installation of CLIENT's computer equipment, located at 409 Shall
Street, Little Rock, Arkansas.
"SUBSCRIBING CLIENT" -- Any person, firm or corporation which has
entered into a Disaster Recovery Agreement with ALLTEL for use of the
Disaster Recovery Facility.
2. TERM.
The term of this Agreement shall begin on July 1, 1996 (the "Effective
Date") and shall be coterminous with the FM Agreement.
3. DISASTER RECOVERY FACILITY.
3.10 ACCESS. Upon declaration of a Disaster, CLIENT may use the
Disaster Recovery Facility under the appropriate class of
service, upon at least six hours' notice to ALLTEL, for a
period of up to six (6) consecutive weeks (the "Recovery
Period"). Thereafter, continued use of the Disaster
Recovery Facility, may be permitted except that another
Subscribing Client who experiences a Disaster after CLIENT's
Recovery Period shall be granted priority access to and use
of the facility.
3.20 ALLTEL COMPUTER EQUIPMENT. ALLTEL will purchase and
maintain in force maintenance agreements for the equipment
described in Attachment 2.
3.30 ALLTEL COMPUTER EQUIPMENT CHANGE. ALLTEL may change or
relocate its IBM compatible computer equipment configuration
at any time upon sixty (60) days prior written notice to
CLIENT; provided, however, that no such notice shall be
required if any such change does not adversely affect the
usefulness to CLIENT of the changed configuration as a
Disaster Recovery Facility. If such a change results in the
Disaster Recovery Facility becoming materially unusable to
CLIENT for disaster recovery, CLIENT may terminate this
Agreement in accordance with Paragraph 10 herein.
3.40 MULTIPLE DISASTERS. In order to reduce the possibility of a
Multiple Disaster, ALLTEL will exercise due care and
discretion in contracting with new clients to avoid
geographic concentrations that would unduly increase
exposure. When a new contract is contemplated that would
result in a perceived exposure due to a geographic
concentration and/or client size, ALLTEL will perform an
analysis of said exposure for review by ALLTEL management
prior to execution of the proposed contract. In addition,
no agreement will be signed with a prospective client who is
currently experiencing a Disaster.
If a Multiple Disaster occurs, more than one Subscribing
Client may be granted access to the Disaster Recovery
Facility. ALLTEL will exercise its best efforts to
coordinate the activities of these Subscribing Clients.
E-1
43
3.50 COMPUTER EQUIPMENT COMPATIBILITY ASSURANCE. CLIENT will
appoint a Disaster Recovery Coordinator who will maintain
records of CLIENT computer equipment sufficient to identify
any differences which could affect successful processing,
and will promptly notify ALLTEL of any change which may do
so. The Disaster Recovery Coordinator will maintain
documentation for resolution of such differences in the
event of a Disaster. ALLTEL will provide CLIENT with one
(1) copy of the ALLTEL Disaster Recovery Services Users
Guide to assist CLIENT in the understanding and use of the
services provided herein.
CLIENT agrees to conduct a test annually in the Disaster
Recovery Facility. Each test should be an analysis of
compatibility consisting of CLIENT's operating system,
applications, and communications software sufficient to
achieve the pre-established mutually agreeable objectives.
The test should be planned for completion within the test
time allocation specified in Attachment 2, although extra
chargeable time may be authorized by ALLTEL if unforeseen
problems occur and there is a reasonable expectation of
solution within the time extension. CLIENT will submit the
request for an annual test to ALLTEL using forms and
procedures established. ALLTEL will schedule the test on a
mutually agreeable date. Data Center personnel will conduct
the test with the assistance of ALLTEL staff, as necessary.
3.60 NON-DISASTER USE. The Disaster Recovery Facility will be
used by ALLTEL for development and internal accounting, and
for testing of other Subscribing Clients. During any
Recovery Period, a Subscribing Client who has declared a
Disaster shall take priority over all such use and may
preempt Client's' test and use of associated services.
4. DISASTER RECOVERY PLAN.
CLIENT agrees to develop or acquire, and to maintain, a specific,
written plan for dealing with its data processing needs during a
Disaster (the "Disaster Recovery Plan"). A current copy of the
Disaster Recovery Plan shall be maintained by CLIENT at its operating
facility, at an offsite backup location, at the Data Center, and at
ALLTEL's Disaster Recovery Facility.
5. ALLTEL AND CLIENT RELATIONSHIP.
5.10 CLIENT PERSONNEL. CLIENT agrees that trained personnel with
appropriate levels of authority shall be temporarily located
at the Disaster Recovery Facility during all Recovery Period
processing to perform all CLIENT operations functions. In
addition, to the extent that CLIENT has responsibility under
the FM Agreement, CLIENT agrees to provide the necessary
supplies and personnel (at the Disaster Recovery Facility or
at CLIENT's facility, as required) to perform said
functions.
5.20 TRAVEL AND LIVING EXPENSES. CLIENT will pay all travel and
living expenses incurred by either CLIENT or ALLTEL for
temporary relocation of personnel as a result of a Disaster
and/or testing.
E-1
44
5.30 ADDITIONAL SERVICES. CLIENT agrees to pay the amounts
normally charged to other similarly-situated clients of
ALLTEL for all services performed by ALLTEL that are not
otherwise provided for in the FM Agreement or in this
Agreement.
5.40 PROCESSING FREQUENCY. This Agreement does not guarantee
that all applications will be processed as frequently during
the Recovery Period as they are processed under the FM
Agreement. The applications processed will be consistent
with the priorities set forth in the Disaster Recovery Plan.
5.50 TIME OF PERFORMANCE. ALLTEL will use diligence to provide
the data processing services set forth in the FM
Agreement at the times required therein. CLIENT acknowledges,
however, that the circumstances of a Disaster are likely to
adversely impact ALLTEL's time of performance and that the
provisions of the Time of Performance section of the FM
Agreement shall continue to be applicable during the Recovery
Period.
5.60 ALLTEL CORPORATE RESOURCES. ALLTEL will use good faith
efforts to make available those corporate resources
reasonably necessary and not otherwise included in this
Agreement, to support CLIENT's disaster recovery efforts.
Any resource used that is a chargeable item will be charged
at the then prevailing rate for similarly situated clients.
The following is a non-exclusive list of items for which
ALLTEL shall charge CLIENT. Any additional chargeable item
shall be mutually agreed to by the parties. The prices
for the items listed are set forth below and may be
changed not more than once in any calendar year upon written
notice to CLIENT.
Systems Programmer $110.00/hour
Applications Programmer $110.00/hour
TDS Proprietary Network Support $ 90.00/hour
Non Proprietary Network Support $110.00/hour
Tape Hanger $ 35.00/hour
Corporate Aircraft $800.00/hour
6. SERVICE LEVELS.
6.10 BASIC COVERAGE. The basic coverage under this Agreement
provides for access to the Disaster Recovery Facility under
the Class of Service indicated in Attachment 1.
6.15 SHELL FACILITY. Access to and use of the Shell Facility are
provided under the terms and conditions of Attachment 3.
6.20 ONLINE. Availability of local terminals at the Disaster
Recovery Facility is provided as shown in Attachment 2.
Backup of CLIENT's online circuits, if any, is provided
under the terms and conditions of the Addendum for Dial
Backup Service, the Addendum for Multiplexer Service, the
Addendum for Channel Bank Service, the Addendum for Switched
56Kb Service, or the Addendum for Switched T1 Service.
E-1
45
6.25 REMOTE TESTING. Availability of remote testing
capabilities, if any, are provided under the terms and
conditions of the Addendum for Remote Testing.
6.30 REMOTE TERMINAL CLUSTER. Availability of a remote terminal
cluster, if any, is provided under the terms and conditions
of the Addendum for Remote Terminal Cluster.
7. FEES.
7.10 PARTICIPATION FEE. There are three general Classes of
Service offered: 1) Asset Based 2) Equipment Based, and 3)
CPU Utilization Based. Asset Based Class of Service applies
to institutions whose assets are less than $300 million.
Equipment Based Class of Service applies to institutions
whose assets are greater than or equal to $300 million. CPU
Utilization Based Class of Service Class of Service applies
to institutions who, due to economic reasons, are processing
on a significantly larger CPU than they require. CLIENT
will pay the applicable monthly participation fees for the
Class of Service indicated in Attachment 1.
7.20 CLIENT COMPUTER EQUIPMENT CHANGE. Upon the installation or
deinstallation of any computer equipment at CLIENT's
data center which changes CLIENT's Equipment Based Class of
Service, CLIENT agrees to pay the participation fees (whether
higher or lower) at the new Class of Service rate. If
CLIENT's requirements exceed the capacity of or are
incompatible with the subscribed Class of Service, CLIENT
will notify ALLTEL. ALLTEL and CLIENT will then have ninety
(90) days in which to resolve the capacity or incompatibility
situation, which solution may include an agreement with a
third party. If, after ninety (90) days from CLIENT's notice
to ALLTEL, ALLTEL and CLIENT have not agreed upon a mutually
satisfactory solution, either party may terminate this
Agreement.
7.30 FACILITY ACCESS FEE. CLIENT agrees to notify ALLTEL
verbally and in writing of its declaration of a Disaster,
and such notice shall require payment of the Facility Access
Fee set forth in Attachment 1.
7.40 FACILITY USAGE FEE. During the Recovery Period, CLIENT will
also pay the hourly Facility Usage Fee described in
Attachment 1.
7.50 MISCELLANEOUS FEES. CLIENT will pay for miscellaneous third
party services that CLIENT authorizes to be performed
that are not otherwise provided for in this Agreement at the
rates then charged to other similarly-situated ALLTEL
clients.
7.60 ESCALATION OF FEES. ALLTEL may periodically adjust its fees
for Disaster Recovery to reflect the various fluctuations in
the cost of supplying services. Such adjustments will occur
under the same terms and conditions as those described in
Exhibit C of the FM Agreement.
E-1
46
8. PAYMENT AND BILLING.
CLIENT agrees to pay the Participation Fee monthly in advance. Other
applicable fees will be invoiced at least monthly. CLIENT agrees to
pay all such fees within thirty days of the respective dates of such
invoices.
9. LOCATION CHANGE.
CLIENT may change the location of the Data Center upon prior written
notice to ALLTEL.
10. CLIENT TERMINATION.
CLIENT may terminate this Agreement without penalty or fee if any
change in the ALLTEL Computer Equipment under the provisions of
paragraph 3.30 results in the Disaster Recovery Facility becoming
materially unusable to CLIENT for disaster recovery purposes. CLIENT
must notify ALLTEL in writing within thirty (30) days of ALLTEL's
announcement of the equipment change. Termination is subject to the
actual installation of such equipment and effective as of such
equipment change installation date.
11. SECURITY AND CONFIDENTIALITY.
CLIENT agrees to observe ALLTEL's security procedures while using the
Disaster Recovery Facility. ALLTEL and CLIENT each agree to take such
steps and exercise such precautions to protect the proprietary or
confidential information of the other as each exercises in protecting
its own most valuable proprietary or confidential information. ALLTEL
and CLIENT each agree to indemnify the other and hold the other
harmless from and against any loss, claim, damage or expense
(including attorneys' fees) resulting from or arising out of any
unauthorized use or disclosure of the confidential or proprietary
information of the other.
12. SHARED USE.
CLIENT acknowledges that ALLTEL is not liable for any loss, claim,
damage or expense directly or indirectly resulting from the shared use
of the Disaster Recovery Facility and related services in the event of
a Multiple Disaster, except to the extent that such loss, claim,
damage or expense was caused by ALLTEL's negligence or willful
misconduct.
13. DISCLAIMER OF MERCHANTABILITY.
ALL REPRESENTATIONS AND WARRANTIES OF ALLTEL ARE EXPRESSLY SET FORTH
HEREIN. ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE DISASTER RECOVERY FACILITY AND
RELATED SERVICES OR THEIR USE, ARE HEREBY DISCLAIMED.
14. FORCES BEYOND ALLTEL CONTROL.
E-1
47
ALLTEL shall use reasonable and diligent efforts to make the Disaster
Recovery Facility and related services available and operational at
all times, and in so doing shall take reasonable steps to safeguard
against events which could adversely impact the use thereof.
ALLTEL is not liable to CLIENT or any other person for claims or
damages which result from any failure beyond ALLTEL's control
including but not limited to, acts of God, the public enemy, acts of
any federal, state or local government, fires, floods, tornadoes,
earthquakes or other weather related disasters, war, strikes,
unavailability of computer equipment replacement parts, disruption of
communication service and utility outages.
15. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Arkansas.
E-1
48
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned,
hereunto duly authorized, on the date(s) set forth below.
ALLTEL FINANCIAL INFORMATION REGIONAL ACCEPTANCE
SERVICES, INC. CORPORATION
By: By:
-------------------------------------------- -------------------------------------------
Name: David L. Eanes Name:
------------------------------------------ -----------------------------------------
(Type or Print) (Type or Print)
Title: Manager, Disaster Recovery Services Title:
----------------------------------------- ----------------------------------------
Date: Date:
------------------------------------------ -----------------------------------------
E-1
49
ATTACHMENT 1
FEE SCHEDULE
CLIENT's CLASS OF SERVICE is determined by the CPU size (in RPR) in the Data
Center. The services provided hereunder are indicated below under CLASS OF
SERVICE. Total Monthly Participation Fees are computed below and are included
in the monthly fees shown in Exhibit C.
CLASS OF SERVICE
----------------
Equipment Based
I. PARTICIPATION FEES:
Basic Coverage includes: incl.
Computer Equipment List (Attachment 2) incl.
Shell Facility (Attachment 3) incl.
Online Processing:
Dial Backup Service incl.
Remote Testing incl.
Remote Terminal Cluster incl.
TOTAL MONTHLY PARTICIPATION FEE incl.
II. FACILITY ACCESS FEE:
Disaster Recovery Facility $ 5,000
III. FACILITY USAGE FEE:
Disaster Recovery Facility (Clock Hour) $ 100
Shell Facility (Sq. Ft./Day) $ .15
E-1
50
ATTACHMENT 2
COMPUTER EQUIPMENT LIST
CLASS OF SERVICE "EQUIPMENT BASED"
Equipment
Quantity Type-Model Description
-------- ---------- -----------
1 AS400-300-2042 Processor (or Equivalent) and the
following equivalent capacities:
4 IBM 3196 Terminals (Local)
25 Gb EMC HX 3SR-4F Disk Storage
1 IBM 2440 Tape Drive (1600/6250 BPI)
1 EMC 7208 8 MM Tape Cartridge (7 Gb)
1 BM 5262 Printer (800 LPM)
8 Hours Test Time Eight Wall-Clock Hours
(Non-cumulative)
E-1
51
ATTACHMENT 3
SHELL FACILITY
1. ALLTEL DISASTER RECOVERY SHELL FACILITY.
1.10 ACCESS AND UTILIZATION. Upon declaration of a Disaster,
CLIENT will have access to the Shell Facility for a
period of up to nine (9) months (the "Extended Recovery
Period"). In the event of a Multiple Disaster, more than one
Subscribing Client may be granted access to the Shell
Facility pursuant to Section 3.40 of the Agreement. ALLTEL
may utilize the facility if a Disaster occurs in any of its
own data centers.
1.20 COMPUTER EQUIPMENT. No computer equipment will be installed
prior to the Recovery Period. The party who owned the
equipment in the Data Center will be responsible for
procurement, shipment and installation of all required
equipment following the declaration of a Disaster.
1.30 SPECIFICATIONS. The Shell Facility consists of 17,500 sq.
ft. of space, including 4,500 sq. ft. of raised floor area.
Air conditioning capacity is 600,000 BTU/HR, electrical
capacity is 160KVA. There are 200 telephone pairs into the
building, with 20 pairs active. The remaining non-raised
floor area consists of office and storage space for CLIENT
use. CLIENT will pay the fee prescribed in Attachment 1,
for the amount of space actually used by CLIENT during the
Extended Recovery Period.
2. CLIENT PERSONNEL.
CLIENT agrees that trained personnel of CLIENT, with appropriate
levels of authority shall be temporarily located at the Shell Facility
during the Extended Recovery Period to perform all CLIENT operations
functions. An ALLTEL representative will be present while CLIENT
personnel are occupying the Shell Facility. To the extent that they
are available, qualified ALLTEL personnel may be assigned to augment
CLIENT's staff at the rates referenced in Section 5.30 of the
Agreement.
3. TERMINATION.
ALLTEL may terminate this Attachment, without the termination of
the Agreement and other attachments, addenda or schedules, upon thirty
(30) days prior written notice to CLIENT. Should this service be
supplanted by another form of service which is useful to CLIENT, CLIENT
will be afforded priority to subscribe to the new service.
52
ADDENDUM
FOR
DIAL BACKUP SERVICE
1. ALLTEL RESPONSIBILITIES.
ALLTEL agrees to provide dial backup modems and a sufficient number of
dial telephone lines and matrix switch port connections at the
Disaster Recovery Facility ("DRF") to permit connectivity to the
Disaster Recovery Front End Processor ("FEP") during the recovery
period. ALLTEL will ship the modems to CLIENT's designated locations
as soon as possible after CLIENT declares a Disaster.
2. CLIENT RESPONSIBILITIES.
CLIENT will provide a location for the installation of dial
backup equipment for each designated circuit. At each location, an
Alternate Control Point ("ACP") will be installed, along with a
corresponding dial telephone circuit, for each CLIENT multi-point
circuit to be backed up. CLIENT will notify ALLTEL in writing of ACP
locations and of any changes as they occur. CLIENT agrees to provide
all other hardware, including compatible modems, communications links
and any necessary software to utilize this service. CLIENT also agrees
to pay the then current prices to lease or purchase all such equipment
and to bear all shipping, installation, and telephone usage charges.
CLIENT acknowledges that response times may be greater than those
experienced during normal operations.
3. CONFIGURATION.
The following configuration will be available for the prescribed
monthly fee for Dial Backup Service:
Quantity Manufacturer/Type Description
-------- ----------------- -----------
1 Southwestern Bell Dial telephone circuits
1 AT&T 3811 2.4 - 14.4 Bps Dial Backup Modems
1 AT&T 3810 2.4 - 14.4 Bps Dial Backup Modems
4. TESTING.
ALLTEL hereby grants CLIENT usage of up to three of the modems for up
to one week annually for the purpose of online testing in conjunction
and concurrently with other tests of CLIENT's disaster recovery
requirements. ALLTEL will air-ship the dial backup modem(s) to CLIENT
during the week prior to the test. CLIENT will install the modem(s)
per ALLTEL instructions and pay all shipping, installation, and
telephone usage charges. CLIENT will return air-ship the modem(s) to
ALLTEL Disaster Recovery on the first work day following the test.
5. FEES.
E-1
53
Fees for the services provided by ALLTEL under this Addendum are
included in the Monthly Participation Fees set out in Attachment 1.
E-1
54
ADDENDUM
FOR
REMOTE TESTING
1. ALLTEL RESPONSIBILITIES.
ALLTEL agrees to provide at the Disaster Recovery Facility ("DRF") the
hardware, software and communications devices for testing remotely on
CLIENT-owned equipment at CLIENT's designated location.
2. CLIENT RESPONSIBILITIES.
CLIENT must ship all necessary tapes and documentation to ALLTEL prior
to the test and follow normally prescribed procedures. CLIENT's
disaster recovery plan should document the intent to use similar
remote capabilities during a disaster. CLIENT agrees to provide all
other hardware, including a compatible modem at CLIENT's location,
along with a compatible terminal, controller, and communications link.
CLIENT agrees to pay all telephone usage charges required to utilize
this service from CLIENT's location to the DRF. CLIENT must provide
at least one operator at the DRF to perform all CLIENT operations
functions, unless ALLTEL, at its sole discretion, elects to waive this
requirement.
3. CONFIGURATION.
The following configuration will be available for the prescribed
monthly fee for Remote Testing:
Quantity Manufacturer/Type Description
-------- ----------------- -----------
1 Southwestern Bell Dial telephone circuit
1 AT&T 3811 2.4 - 14.4 Bps Dial Backup Modems
1 AT&T 3810 2.4 - 14.4 Bps Dial Backup Modems
4. TESTING.
ALLTEL hereby grants CLIENT access to the Remote Testing configuration
for the purpose of file transfer testing in conjunction with other
tests of CLIENT's disaster recovery requirements.
5. FEES.
Fees for the services provided by ALLTEL under this Addendum are
included in the Monthly Participation Fees set out in Attachment 1 to
the Disaster Recovery Agreement.
E-1
55
ADDENDUM
FOR
REMOTE TERMINAL CLUSTER
1. ALLTEL RESPONSIBILITIES.
ALLTEL agrees to provide for use at CLIENT's facility the hardware and
communications devices, along with the required dial telephone access,
to permit remote terminal connectivity to the Disaster Recovery
Central Processing Unit (CPU) within approximately one to three days
after CLIENT's declaration of a disaster.
2. CLIENT RESPONSIBILITIES.
CLIENT will make arrangements in advance, for the potential location
of this equipment, and will document such arrangements in CLIENT's
Disaster Recovery Plan and will, furthermore, advise ALLTEL of these
arrangements and of any changes that may occur. CLIENT agrees to pay
the then current prices to purchase or lease all shippable equipment
and to bear all shipping, installation, and telephone usage charges
associated with said usage or testing. CLIENT also agrees to provide
all other hardware, cables and communications interfaces and any
software required to utilize this service. CLIENT acknowledges that
response times may be greater than those experienced during normal
operations.
3. CONFIGURATION.
The following configuration will be available for the prescribed
monthly fee for the Remote Terminal Cluster:
Quantity Manufacturer/Type Description
---------- ----------------- -----------
1 Southwestern Bell Dial telephone circuit
1 IBM 5294 Remote Controller (1)
4 IBM 5291 Terminals and cables
2 AT & T 2000 Series Modems with dial backup
4. TESTING.
ALLTEL hereby grants CLIENT usage of the remote terminal configuration at
the DRF for the purpose of testing the Remote Terminal Cluster option in
conjunction and concurrently with other tests of CLIENT's disaster
recovery requirements.
E-1
56
5. FEES.
Fees for the services provided by ALLTEL under this Addendum are included
in the Monthly Participation Fees set out in Attachment 1.