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EXHIBIT 10o
AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES
THIS AGREEMENT ("Agreement") is between ELECTRONIC DATA SYSTEMS
CORPORATION ("EDS"), a Texas corporation with an address at 5400 Legacy Drive,
Plano, Texas 75024, and COBANCORP, INC. ("Customer"), an Ohio Corporation with
an address at 124 Middle Avenue, Elyria, Ohio 44036.
WHEREAS, Customer desires to purchase certain information technology
services from EDS, a provider of such services.
NOW, THEREFORE, Customer and EDS hereby agree as follows:
ARTICLE I - DEFINITIONS
1.1 DEFINITIONS. In this Agreement:
(a) "Additional Services" are the Services described in Section
3.1(d).
(b) "Basic Services" are the Services listed in Schedule A.
(c) "Business Day" is each weekday, Monday through Friday, which
is not a holiday of Customer.
(d) "Conversion Services" are the Services described in Section
3.1(c).
(e) "CPI" is the Consumer Price Index for All Urban Consumers,
U.S. City Average, for All Items (1982-1984 = 100) as
published by the Bureau of Labor Statistics of the U.S.
Department of Labor. If the Bureau of Labor Statistics stops
publishing the CPI, the parties will substitute another
comparable measure published by a mutually agreeable source.
However, if such change is merely to redefine the base period
for the CPI from 1982-1984 to some other period, the parties
will continue to use the CPI but will, if necessary, convert
the two CPI's being compared to the same basis by multiplying
one of them by the appropriate conversion factor.
(f) "Data Center" is the space at one or more locations where EDS
performs Services, excluding Customer locations.
(g) "EDS Systems" are all Systems, except for Systems provided by
Customer, used by EDS to provide Services, including without
limitation any improvements, modifications or enhancements made
by EDS to any System and provided to Customer under this
Agreement.
(h) "Effective Date" is the date that this Agreement is executed
by EDS pursuant to Section 9.10.
(i) "Equipment" is all telecommunications lines, modems and other
equipment, including without limitation terminals, control
units, ports, logical units, and all related data transmission
services required by EDS for Customer to access the EDS
Systems, transmit data to EDS and receive reports and other
output from EDS.
(j) "Initial Term" is defined in Section 2.1.
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(k) "Operational Date" is the later of (i) the Effective Date, or
(ii) the first day of the calendar month in which any
Conversion Services are completed and Customer has the
capability to input transactions or data for processing
by EDS.
(l) "Optional Services" are the Services listed in Schedule B.
(m) "Renewal Terms" is defined in Section 2.1.
(n) "Service" or "Services" are all of the services to be
provided by EDS under this Agreement, which include the Basic
Services, Optional Services, Conversion Services and
Additional Services.
(o) "System" or "Systems" are (i) computer programs, including
without limitation software, firmware, application programs,
operating systems, files and utilities; (ii) supporting
documentation for such computer programs, including without
limitation input and output formats, program listings,
narrative descriptions, operating instructions and procedures,
user and training documentation, special forms, and source code;
and (iii) the tangible media upon which such programs are
recorded, including without limitation chips, tapes, disks and
diskettes.
ARTICLE II - TERM
2.1 TERM. This Agreement will begin on the Effective Date and, unless
terminated earlier under Section 7.2, 7.3, 7.4, 7.5 or 9.5, will
continue for a period of seven (7) years from the Operational Date (the
"Initial Term"). Thereafter, this Agreement will automatically renew
for successive terms of seven (7) years each (the "Renewal Terms")
unless either party gives the other party written notice at least six
(6) months prior to the expiration date of the Initial Term or the
Renewal Term then in effect that the Agreement will not be renewed
beyond such term.
ARTICLE III. EDS RESPONSIBILITIES
3.1 SERVICES PROVIDED. EDS or its subcontractors will provide Customer with
the following Services:
(a) BASIC SERVICES. Customer's requirements for Basic Services.
(b) OPTIONAL SERVICES. The Optional Services that Customer
requests and EDS agrees to provide.
(c) CONVERSION SERVICES. On a mutually agreeable schedule EDS will
provide those services and instructions ("Conversion Services")
reasonably required for Customer to convert to and use the EDS
Systems. Customer will cooperate in the conversion effort and
timely provide whatever information, data, clerical and office
support, management decisions, approvals and signoffs that EDS
reasonably requires. According to a plan to be developed by
Customer and EDS, EDS will train a mutually designated group of
Customer's personnel in the proper use of the EDS Systems to
enable such personnel to train Customer's user personnel in the
use of the EDS Systems. Customer will cooperate with EDS in
scheduling training in conjunction with Customer's conversion
to the EDS Systems.
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(d) ADDITIONAL SERVICES. If Customer requests EDS to perform any
Service which is not a Basic Service, an Optional Service or a
Conversion Service, then EDS may provide such service as
an "Additional Service".
3.2 GENERAL TERMS RELATING TO SERVICES. EDS will:
(a) Beginning on the Operational Date, operate the EDS Systems at
the Data Center, and accept data and other input from Customer.
EDS will make daily, monthly and other reports and output,
including specially requested reports, available to Customer at
the Data Center for delivery or transmit them to Customer,
subject to Customer's timely delivery or transmission of data
and other input to the Data Center for processing. EDS will
provide the Services in accordance with the schedule provided
to Customer by EDS upon commencement of the Services, which may
be updated by EDS from time to time. EDS will not be
responsible for the loss of any input or output during transit.
(b) Provide all Equipment at Customer's expense, including related
shipping, installation and maintenance charges, and advise
Customer on the compatibility of its Equipment with the EDS
Systems. Customer may elect, with EDS' approval, to provide
such Equipment at Customer's expense, subject to charges for
Additional Services required for EDS Systems access or
configuration.
(c) Provide for Customer's use one copy of EDS' standard user
documentation and one copy of any revisions describing the
preparation of input for and use of output from the EDS
Systems. Such documentation will address the reports provided
under this Agreement. Upon Customer's request, EDS will provide
additional copies of such documentation at EDS' then standard
charges.
(d) Correct any errors in customer files that result in errors in
reports or other output where such errors (A) are due solely to
either malfunctions of EDS' equipment or the EDS Systems or
errors of EDS' operators, programmers or other personnel, and
(B) are called to EDS' attention within the time frames
specified in Section 5.3. EDS will, to the extent reasonably
practicable, correct any other errors as an Additional
Service.
(e) Provide standard EDS forms for use at the Data Center.
(f) Establish, modify or substitute from time to time any Equipment,
processing priorities, programs or procedures used in the
operation of the EDS Systems or the provision of the Services
that EDS reasonably deems necessary, and notify Customer of
any such changes that will affect Customer's operations.
(g) With the cooperation of Customer, develop, maintain and, as
necessary in the event of a disaster, execute a disaster
recovery plan for the Data Center. EDS will provide Customer
and its auditors and inspectors with access to a summary of
such disaster recovery plan at all reasonable times.
3.3 AUDITS. EDS will provide auditors and inspectors that Customer
designates in writing with reasonable access to the Data Center for the
limited purpose of performing audits or inspections of Customer's
business. EDS will provide to such auditors and inspectors reasonable
assistance, and Customer will compensate EDS for any Additional
Services provided in connection with the audit or inspection. EDS will
not be required to provide access to data of other EDS customers.
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3.4 REGULATORV COMPLIANCE. EDS will endeavor to maintain the EDS Systems so
that they will not be disapproved by any federal or state regulatory
authority with jurisdiction over Customer's business. If Customer
believes that any modifications to the EDS Systems are required under
any laws, rules or regulations, Customer will promptly so inform EDS.
EDS will perform any modifications to the EDS Systems or recommend
changes to operating procedures of Customer that EDS determines are
necessary or desirable at no additional charge to Customer to meet
regulatory requirements. New or enhanced EDS System features,
functions, reports or other Services that may result from such
modifications or recommendations may be provided as an Additional
Service. Notwithstanding the foregoing, Customer acknowledges that the
EDS Systems may, from time to time, consist in part of System(s)
licensed by EDS from third-party vendor(s) and, therefore, EDS shall
have no duty or responsibility to modify any such third-party System
under this Section 3.4 except to the extent that the vendor thereof has
such a duty or responsibility to modify such System pursuant to the
applicable license agreement between EDS and such vendor.
3.5 FINANCIAL STATEMENTS AND EDP AUDIT. Upon request, EDS will provide at
no charge one copy of EDS' most recent audited financial statements to
Customer. Upon request, EDS will also provide to Customer one copy of
EDS' most recent independent Data Center EDP audit at EDS' then
standard charge for such copy.
ARTICLE IV - PAYMENTS TO EDS
4.1 SERVICE CHARGES. Customer will pay EDS for the Services as follows:
(a) For Basic Services, the monthly charges listed in Section 1 of
Schedule C.
(b) For Optional Services, EDS' standard charges for such Services
at the time they are provided, or, if EDS then has no standard
charges for such Services, upon whatever other basis
that the parties agree.
(c) For Conversion Services, the applicable conversion charge
listed in Section 2 of Schedule C.
(d) For Additional Services, EDS' then standard charges for such
Services, or, if EDS then has no standard charges for such
Services, upon whatever other basis that the parties
agree.
4.2 ADDITIONAL CHARGES. Customer will also pay EDS the following, if
applicable:
(a) All costs incurred by EDS (i) in mailing reports or other
output to Customer, its customers or third parties, and (ii) in
transporting, shipping or delivering reports, output or input
between the Data Center and Customer's locations.
(b) All actual, out-of-pocket costs and expenses, including, without
limitation, travel and travel-related expenses, which are
incurred by EDS in providing Services when incurred at
Customer's request.
(c) Any other charges expressly provided in this Agreement.
(d) All taxes, however designated or levied, based upon any
charges under this Agreement, or upon this Agreement or the
Systems, Services or materials provided hereunder, or their
use, including without limitation state and local
privilege or excise taxes based on gross revenue, sales and use
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taxes, and any taxes or amounts in lieu thereof paid or payable
by EDS in respect of the foregoing, exclusive, however, of
franchise taxes and taxes based on the net income of EDS.
4.3 TIME OF PAYMENT. All charges under this Agreement will be due and
payable within ten (10) days of invoice date. Any charges not paid
within thirty (30) days of invoice date will bear interest until paid
at a rate equal to the lesser of one-and-one-half percent (1.5%) per
month or the maximum interest rate allowed by applicable law. Customer
authorizes EDS to collect charges for Services through applicable
clearing house procedures.
4.4 COST OF LIVING ADJUSTMENT. Except as provided below, and no more than
once in any twelve (12) month period, EDS may, at its option and by
giving Customer written notice, increase the charges for Basic Services
by a percentage not to exceed the percentage by which the CPI as of
that time is higher than the CPI as of (j) for the first adjustment,
the earlier of the Effective Date or the date of the last adjustment
previously made pursuant to any immediately prior agreement, if any,
under which EDS provided the same or similar Services to Customer, and
(ii) thereafter, the previous time that EDS adjusted its charges to
Customer pursuant to this Section. These increased charges will remain
in effect until EDS adjusts them again pursuant to this Section. If,
however, before the expiration of any twelve (12) month period after
any such adjustment, the CPI has increased by more than eight percent
(8%) from the CPI as of the time of the previous adjustment, then EDS
may increase the charges for such Services by a percentage not to
exceed the percentage by which the CPI as of such time is greater than
the CPI as of the time of such previous adjustment.
ARTICLE V - CUSTOMER RESPONSIBILITIES
5.1 MAINTENANCE OF EQUIPMENT. Customer will maintain all Equipment owned or
leased by Customer in good working order in accordance with
manufacturer's specifications.
5.2 PROVISION OF CUSTOMIZED FORMS. Unless otherwise agreed in writing,
Customer will provide or pay for all customized forms required by
Customer. These forms will conform to EDS' reasonable specifications.
Customer will also provide all forms produced or printed at Customer's
premises and required for the performance of Services, or will pay
mutually agreed charges to EDS for such forms if provided by EDS
at Customer's request.
5.3 CORRECTION OF REPORTS AND OUTPUT. Customer will balance reports to
verify master file information and will inspect and review all reports
and other output (whether printed, microfiched or electronically
transmitted) created from data provided by Customer to EDS. Customer
will reject all incorrect reports or output within two (2) Business
Days after receipt of daily reports or output, within five (5) Business
Days after receipt of annual, quarterly or monthly reports or output,
and within three (3) Business Days after receipt of all other
reports or output.
5.4 PROVISION OF DATA. Customer will he responsible for the quality and
accuracy of all data and other input provided to EDS. EDS may, at its
option, return to Customer for correction before processing any data
submitted by Customer which is incorrect, illegible or not in proper
form. If Customer does not provide its data to EDS in accordance with
EDS' specified format and schedule, EDS will use reasonable efforts to
reschedule and process the data as promptly as possible. Related
expenses incurred by EDS will be charged to Customer.
5.5 USE OF SYSTEM, PROCEDURES, ETC. Customer will comply with all operating
instructions for the EDS Systems which are issued by EDS from time to
time. Except as otherwise provided in this Agreement, Customer will be
responsible for the supervision, management and control of its use
of the EDS
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Systems, including without limitation (i) implementing sufficient
procedures to satisfy its requirements for the security and accuracy of
the data and other input Customer provides, (ii) implementing
reasonable procedures to verify reports and other output from EDS
within the time frames specified in Section 5.3, and (iii) specifying
the methods of accrual calculation to be used by EDS in providing
the Services from the options available in the EDS Systems.
ARTICLE VI - SYSTEMS, DATA AND CONFIDENTIALITY
6.1 EDS SYSTEMS. All EDS Systems are and will remain the exclusive property
of EDS or licensors of such EDS Systems, as applicable, and, except as
expressly provided in this Agreement, Customer shall have no ownership
interest or other rights in any EDS System. Customer acknowledges that
the EDS Systems include EDS proprietary information and agrees to keep
the EDS Systems confidential at all times. Upon the expiration or
termination of this Agreement, Customer will return all copies of all
items relating to the EDS Systems which are in the possession of
Customer and certify to EDS in writing that Customer has retained no
material relating to the EDS Systems.
6.2 CUSTOMER'S INFORMATION. Information relating to Customer or its
customers contained in Customer's data files is the exclusive property
of Customer and EDS will only be the custodian of that information.
EDS agrees to hold in confidence all proprietary information of
Customer and its customers provided to EDS. However, upon the request
of any appropriate federal or state regulatory authority with
jurisdiction over Customer's business and after EDS has, when
reasonably possible, notified Customer of such request, EDS will allow
such authority access to all records and other information of Customer
and its customers in the possession of EDS and provide as an Additional
Service any related assistance that is required. Promptly after the
termination or expiration of this Agreement and the payment to EDS of
all sums due and owing, including without limitation any amounts due
under Sections 7.6 or 7.7, EDS will, at Customer's request and expense,
return to Customer all of Customer's information, data and files in
EDS' then standard machine-readable format and media.
6.3 CONFIDENTIALITY. Except as otherwise provided in this Agreement, EDS
and Customer each agree that all information communicated to one by the
other or the other's affiliates, whether before or after the Effective
Date, will be received in strict confidence, will he used only for
purposes of this Agreement, and except for the requirements of Section
6.2 will not be disclosed by the recipient party, its agents,
subcontractors or employees without the prior written consent of the
other party. Each party agrees to take all reasonable precautions to
prevent the disclosure to outside parties of such information,
including, without limitation, the terms of this Agreement, except as
required by legal, accounting or regulatory requirements beyond the
reasonable control of the recipient party. The provisions of this
Section will survive the expiration or termination of this Agreement
for any reason.
6.4 SAFEGUARDING DATA INTEGRITY. EDS will maintain internal computer data
integrity safeguards (such as access codes and passwords) to protect
against the accidental or unauthorized deletion or alteration of
Customer's data in the possession of EDS. EDS will provide additional
internal computer data integrity safeguards that Customer reasonably
requests as an Additional Service. EDS will also employ and
maintain controlled access Systems in the Data Center.
6.5 CONTINGENCY PLANNING. The parties' responsibilities with respect to
contingency planning will be as follows:
(a) EDS will develop, maintain and, as necessary in the event of a
disaster, execute a disaster recovery plan (the "EDS Plan") for
the Data Center and will provide to Customer and its auditors
and inspectors such access to the EDS Plan as Customer may
reasonably request from
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time to time. EDS will not be required to provide access to
information of other EDS customers.
(b) Customer will develop, maintain and, as necessary in the event of a
disaster, execute a business resumption plan (the "Customer Plan")
for all Customer locations and the telecommunications links between the
customer locations and the Data Center and will provide to EDS such
access to the Customer Plan as EDS may reasonably request from
time to time.
(c) EDS will provide to Customer such information as may be reasonably
required for Customer to assure that the Customer Plan is compatible
with the EDS Plan.
(d) Each party will be responsible for the training of its own personnel as
required in connection with all applicable contingency planning
activities.
(e) Each party's contingency planning activities will comply, as
appropriate, with such of the following regulatory policies as may be
applicable to Customer's business, as the same may be amended or
replaced from time to time:
Federal Deposit Insurance Corporation Bank Letter BL-22-88
dated July 14, 1989
Federal Reserve System Supervision and Regulation Number
SR-89-16 dated August 1, 1989
Office of the Comptroller of the Currency Banking Circular
Number BC177 dated July 12, 1989
Office of Thrift Supervision Bulletin Number TB30 dated July
19, 1989
If compliance with any amendments or replacements of the policies
listed above would significantly increase EDS' cost of providing
Services, EDS will be entitled to increase the charges under this
Agreement by an amount that reflects a pro rata al]ocation of EDS'
increased cost among the applicable EDS customers.
ARTICLE VII- TERMINATION AND RELATED MATTERS
7.1 ARBITRATION. Any dispute, controversy or claim arising out of,
connected with, or relating to this Agreement, or the breach,
termination, validity, or enforceability of any provision of this
Agreement, will be resolved by final and binding arbitration by a panel
of three (3) arbitrators in accordance with and subject to the
Commercial Arbitration Rules of the American Arbitration Association
("AAA") then in effect. Following notice of a party's election to
require arbitration, each party will within thirty (30) days select one
arbitrator, and those two arbitrators will within thirty (30) days
thereafter select a third arbitrator. If the two arbitrators are unable
to agree on a third arbitrator within thirty (30) days, the AAA will
within thirty (30) days thereafter select such third arbitrator.
Discovery as permitted by the Federal Rules of Civil Procedure then in
effect will be allowed in connection with arbitration to the extent
consistent with the purpose of the arbitration and as allowed by the
arbitrators. Judgment upon the award rendered in any arbitration may be
entered in any court of competent jurisdiction, or application may be
made to such court for a judicial acceptance of the award and an
enforcement, as the law of the state having jurisdiction may require or
allow. During any arbitration proceed ings, EDS will continue to
provide Services, and Customer will continue to make payments to EDS in
accordance with this Agreement. The fact that arbitration is or may be
allowed will not impair the exercise of any termination rights under
this Agreement.
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7.2 TERMINATION DUE TO ACQUISITION. If fifty percent (50%) or more of the
stock or assets of Customer are acquired by another person or entity,
whether by merger, reorganization, sale, transfer or other similar
transaction, EDS and Customer will negotiate in good faith the terms
and conditions upon which this Agreement may be modified to accommodate
such transaction. If the parties are unable to agree upon such
modification, either party upon written notice to the other may
terminate this Agreement upon the consummation of such acquisition or
on a mutually agreeable date thereafter.
7.3 TERMINATION FOR NON-PAYMENT. If Customer defaults in the payment of any
charges or other amounts due under this Agreement and fails to cure
such default within ten (10) days after receiving written notice
specifying such default, then EDS may, by giving Customer at least
thirty (30) days prior written notice thereof, terminate this Agreement
as of a date specified in such notice.
7.4 TERMINATION FOR CAUSE. If either party materially defaults in its
performance under this Agreement, except for non-payment of amounts due
to EDS, and fails to either substantially cure such default within
ninety (90) days after receiving written notice specifying the default
or, for those defaults which cannot reasonably be cured within ninety
(90) days, promptly commence curing such default and thereafter proceed
with all due diligence to substantially cure the default, then the
party not in default may, by giving the defaulting party at least
thirty (30) days prior written notice thereof, terminate this
Agreement as of a date specified in such notice.
7.5 TERMINATION FOR INSOLVENCY. If Customer becomes or is declared
insolvent or bankrupt, is the subject of any proceedings relating to
its liquidation or insolvency or for the appointment of a receiver,
conservator or similar officer, or makes an assignment for the benefit
of all or substantially all of its creditors or enters into any
agreement for the composition, extension, or readjustment of all or
substantially all of its obligations, then EDS may, by giving Customer
prior written notice thereof, terminate this Agreement as of a date
specified in such notice.
7.6 PAYMENT UPON TERMINATION. The parties acknowledge that upon termination
of this Agreement for any reason, including under Section 7.2, 7.3, 7.4
or 7.5 (but excluding by election by either party not to renew pursuant
to Section 2.1 or termination by Customer pursuant to Section 7.4 or
9.5), EDS will incur damages resulting from such termination that will
be difficult or impossible to ascertain. Therefore, prior to such
termination and in addition to all other amounts then due and owing to
EDS, Customer will pay to EDS as reasonable liquidated damages an
amount equal to the sum of subsections (a) and (b):
(a) All costs reasonably incurred by EDS in connection with such
termination, including without limitation telecommunication
line disengagement expenses and costs of terminating leases on
or shipping or storing any Equipment provided to Customer by or
through EDS under this Agreement, plus a twenty-five percent
(25%) management fee on such costs, plus EDS' charges for any
Additional Services reasonably requested by Customer for
deconversion assistance and EDS' then standard charges for the
resources utilized to prepare any test or conversion tapes
(together, the "Termination Costs"). EDS may, at its option,
invoice Customer for the lesser of (i) EDS' good faith estimate
of the Termination Costs, or (ii) the aggregate of the charges
payable to EDS pursuant to Article IV for the two calendar
months preceding the month in which notice of termination is
given. If the actual Termination Costs are greater or less than
the amount of EDS' invoice that is paid by Customer under the
immediately preceding sentence, then Customer will pay EDS, or
EDS will refund to Customer, as the case may be, the difference
between the actual Termination Costs and the amount paid.
(b) Eighty percent (80%) of the total compensation which would have
been paid or reimbursed to EDS under this Agreement during the
remainder of its term. The amount of total
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compensation will be computed by multiplying the total number
of months remaining in the Initial Term or the Renewal Term
then in effect from the effective date of the termination by
the average monthly charge to Customer for Services under this
Agreement during the twelve (12) calendar months immediately
preceding the calendar month in which notice of termination was
given, and multiplying that number by eighty percent (80%).
This is expressed mathematically as follows: Number of months
remaining in term x average monthly charge for Services during
the twelve (12) months preceding notice of termination x eighty
percent (80%). If this Agreement has been in effect less than
twelve (12) calendar months prior to the giving of the notice
of termination, then the parties will compute the amount due
under this subsection (b) using the average monthly charge for
Services made during such lesser number of calendar months. If
termination of this Agreement occurs prior to the Operational
Date, then the parties will compute the amount due under this
subsection (b) assuming that the Operational Date had occurred
when scheduled by EDS and using the average monthly charges
reasonably estimated to be paid by Customer.
All amounts payable under this Section 7.6 will be invoiced and paid
prior to the effective date of such termination and prior to the
release of any test tapes or other data of Customer.
7.7 PAYMENT UPON NONRENEWAL. If Customer gives or receives notice not to
renew this Agreement pursuant to Section 2.1, or Customer terminates
this Agreement under Section 9.5, Customer will pay to EDS an amount
equal to all amounts then due and payable to EDS, plus (a) EDS' charges
for any Additional Services reasonably requested by Customer for
deconversion assistance, (b) EDS' then standard charges for the
resources utilized to prepare any test or conversion tapes, and (c) all
other costs reasonably incurred by EDS in connection with such election
not to renew or termination that are described in Section 7.6(a) and
that relate to obligations that Customer approved, which extend beyond
the then current term of this Agreement or earlier termination date
under Section 9.5. All amounts payable under this Section 7.7 will be
invoiced and paid prior to the expiration date and prior to the
release of any test tapes or other data of Customer.
ARTICLE VIII- LIABILITY AND INDEMNITY
8.1 LIMITATION OF LIABILITY. Section 3.2(d) sets forth Customer's exclusive
remedies for errors in reports or other output provided by EDS under
this Agreement. If EDS becomes liable to the Customer under this
Agreement for any other reason, whether arising by negligence, willful
misconduct or otherwise, then (a) the damages recoverable against EDS
for all events, acts, delays, or omissions will not exceed in the
aggregate the compensation payable to EDS pursuant to Section 4.1 of
this Agreement for the lesser of the months that have elapsed since the
Operational Date or the three (3) months ending with the latest month
in which occurred the events, acts, delays or omissions for which
damages are claimed, and (b) the measure of damages will not include
any amounts for indirect, consequential or punitive damages of any
party, including third parties, or damages which could have been
avoided had the output provided by EDS been verified before use.
Customer may not assert any cause of action against EDS of which the
Customer knew or should have known more than two (2) years prior to
such assertion. In connection with the conduct of any litigation with
third parties relating to any liability of EDS to Customer or to such
third parties, EDS will have all rights which are appropriate to its
potential responsibilities or liabilities. EDS will have the right to
participate in all such litigation and to settle or compromise its
liability to third parties.
8.2 WARRANTY. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EDS DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW OR
OTHERWISE, CONTAINED IN OR DERIVED FROM THIS AGREEMENT, ANY OF THE
SCHEDULES
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ATTACHED HERETO, ANY OTHER DOCUMENTS REFERENCED HEREIN, OR IN ANY OTHER
MATERIALS, PRESENTATIONS OR OTHER DOCUMENTS OR COMMUNICATIONS WHETHER
ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.3 FORCE MAJEURE. Each party will be excused from performance under this
Agreement, except for any payment obligations, for any period and to
the extent that it is prevented from performing, in whole or in part,
as a result of delays caused by the other party or any act of God, war,
civil disturbance, court order, labor dispute, third party
nonperformance or other cause beyond its reasonable control, including
failures, fluctuations or nonavailability of electrical power, heat,
light, air conditioning or telecommunications equipment. Such
nonperformance will not be a default or a ground for termination as
long as reasonable means are taken to expeditiously remedy the problem
causing such nonperformance.
8.4 CROSS INDEMNITY. EDS and Customer each will indemnify, defend and hold
harmless the other from any and all claims, actions, damages,
liabilities, costs and expenses, including without limitation
reasonable attorney's fees and expenses, arising out of (a) the death
or bodily injury of any agent, employee, customer or business invitee
of the indemnitor, and (b) the damage, loss or destruction of any
property of the indemnitor.
8.5 PATENT INDEMNITY. EDS and Customer each will indemnify, defend and hold
harmless the other from any and all claims, actions, damages,
liabilities, costs and expenses, including without limitation
reasonable attorney's fees and expenses, arising out of any claims of
infringement by the indemnitor of any United States letters patent, any
trade secret, or any copyright, trademark, service mark, trade name or
similar proprietary rights conferred by common law or by any law of the
United States or any state alleged to have occurred because of Systems
provided or work performed by the indemnitor. However, this indemnity
will not apply unless the indemnitee informs the indemnitor as soon as
practicable of any claim or action alleging such infringement and has
given the indemnitor full opportunity to control the response thereto
and the defense thereof, including, without limitation, any agreement
relating to settlement.
8.6 RELIANCE ON INSTRUCTIONS. EDS is entitled to rely upon and act in
accordance with any instructions, guidelines or information provided to
EDS by Customer, which are given by persons having actual or apparent
authority to provide such instructions, guidelines or information, and
will incur no liability in doing so. Customer will indemnify, defend
and hold harmless EDS from any and all claims, actions, damages,
liabilities, costs and expenses, including without limitation
reasonable attorneys' fees and expenses, arising out of or
resulting from EDS acting in accordance with this Agreement.
ARTICLE IX - MISCELLANEOUS
9.1 BINDING NATURE AND ASSIGNMENT. This Agreement will be binding on the
parties and their respective successors and assigns. Customer may not
assign this Agreement unless it obtains the prior written consent of
EDS, which will not be unreasonably withheld.
9.2 HIRING OF EMPLOYEES. During the term of this Agreement and for a period
of twelve (12) months thereafter, neither party will, without the prior
written consent of the other, offer employment to or employ any person
employed then or within the preceding twelve (12) months by the other
party, if the person was involved in providing or receiving
Services.
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9.3 NOTICES. Any notice under this Agreement will be deemed to be given
when delivered by hand or when mailed by United States mail, first
class postage prepaid, and addressed to the recipient party at its
address set forth above and to the attention of its President in the
case of Customer and to the attention of Division President, Financial
Services Division in the case of EDS. Either party may from time to
time change its address for notification purposes, by giving the other
prior written notice of the new address and the date upon which it will
become effective.
9.4 RELATIONSHIP OF PARTIES. EDS, in providing Services, is acting as an
independent contractor and does not undertake by this Agreement or
otherwise to perform any regulatory or contractual obligation of the
Customer. EDS has the sole right and obligation to supervise, manage,
contract, direct, procure, perform or cause to be performed, all work
to be performed by EDS under this Agreement.
9.5 MODIFICATION. EDS may from time to time modify any of the provisions of
this Agreement to be effective at any time on or after the expiration
of the Initial Term by giving Customer at least six (6) months prior
written notice describing the modification and the date upon which it
will be effective (the "Modification Date"). If EDS gives Customer
notice of a modification pursuant to this Section, Customer may, by
giving EDS written notice at least three (3) months prior to the
Modification Date, terminate this Agreement as of such Modification
Date or at a specified later date. Unless Customer provides such
notice, the modification will be effective for any period after the
Modification Date.
9.6 WAIVER. A waiver by either of the parties of any of the covenants,
conditions, or agreements to be performed by the other or any breach
thereof will not be construed to be a waiver of any succeeding breach
or of any other covenant, condition or agreement contained in this
Agreement.
9.7 MEDIA RELEASES. All media releases, public announcements and public
disclosures by Customer or Customer's employees or agents relating to
this Agreement or the subject matter of this Agreement, including
without limitation promotional or marketing material, but not including
any announcement intended solely for internal distribution by Customer
or any disclosure required by legal, accounting or regulatory
requirements beyond the reasonable control of Customer, will be
coordinated with and approved by EDS prior to release.
9.8 ENTIRE AGREEMENT. This Agreement and all attached Schedules constitute
the entire agreement between EDS and Customer with respect to the
subject matter of this Agreement. There are no understandings or
agreements relative to this Agreement which are not fully expressed
herein and no change, waiver or discharge of this Agreement will be
valid unless in writing and executed by the party against whom such
change, waiver or discharge is sought to be enforced. This Agreement
may be amended only by an amendment in writing, signed by the
parties.
9.9 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas.
9.10 EXECUTION OF AGREEMENT. Three (3) original copies of this Agreement
will be executed and submitted to EDS by Customer. This Agreement will
become effective when EDS executes this Agreement. EDS will return one
of the executed copies to Customer. By executing this Agreement,
Customer represents that this Agreement has been duly authorized and
constitutes a valid, fully enforceable and legally binding obligation
of Customer. Customer will maintain this Agreement as an official
record of Customer continuously from the time of its execution.
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IN WITNESS WHEREOF, EDS and Customer each have caused this Agreement to
be signed and delivered by its duly authorized representative.
ELECTRONIC DATA SYSTEMS COBANCORP, INC.
CORPORATION
By: /s/ Max Tipton By: /s/ John S. Kreighbaum
----------------- -----------------------
Printed Printed
Name: Max Tipton Name: John S. Kreighbaum
Title: Area Manager Title: President & Chief Executive Officer
Date: Feb 15, 1995 Date: 2/15/95
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ADDENDUM
This Addendum ("Addendum") to the Agreement for Information Technology Services
("Agreement") between ELECTRONIC DATA SYSTEMS CORPORATION ("EDS") and
COBANCORP, INC. ("Customer"), dated of even date herewith, is between Customer
and EDS.
The parties agree to amend the Agreement as follows:
1. Section 1.1(k) of the Agreement is amended to read as follows:
"Operational Date" is the date that Customer has the capability
to input transactions or data for processing by EDS using the
ITI System. EDS will use commercially reasonable efforts to
accomplish the Operational Date on or before June 30, 1995,
subject to compliance by Customer with its obligations under
this Agreement; provided, however, that if either the Effective
Date is later than February 15, 1995, or EDS is unable to
schedule services from a third party consultant conversion
group, then the Operational Date will be a mutually agreed
later date.
2. New Sections 1.1(p) and 1.1(q) are added to the Agreement to read as
follows:
(p) "ITI System" is the EDS System licensed from Information
Technology, Inc.
(q) "Conversion Period" is the one hundred twenty (120) day period
preceding the Operational Date.
3. Section 2.1 of the Agreement is amended to read as follows:
This Agreement will begin on the Effective Date and, unless
terminated earlier under Section 7.2, 7.3, 7.4, 7.5, 7.8, 7.9,
or 9.5, will continue for a period of seven (7) years from the
Operational Date (the "Initial Term"). Thereafter, this
Agreement will automatically renew for successive terms of
seven (7) years each (the "Renewal Terms") unless either party
gives the other party written notice at least six (6) months
prior to the expiration date of the Initial Term or the Renewal
Term then in effect that the Agreement will not be renewed
beyond such term.
4. A new Section 2.2 is added to the Agreement to read as follows:
EXISTING AGREEMENTS. Effective as of the Operational Date, this
Agreement shall replace and supersede in all respects the
Agreement for Information Technology Services between EDS and
LCB Bancorp, Inc. (predecessor-in-interest to Customer) dated
as of August 5, 1991, as amended (the "Prior Agreement").
Effective as of the Operational Date, the Prior Agreement shall
be terminated and each party thereto, together with its
affiliates, officers, directors, employees, and agents, shall
be released and forever discharged from all obligations,
responsibilities and liabilities arising from or relating to
the Prior Agreement, except that Customer shall remain
obligated to pay any amounts due to EDS under the Prior
Agreement that have not been paid prior to the Operational
Date. Effective as of the Effective Date, the Lease Agreement
between EDS and Lorain County Bank dated November 7, 1991, as
amended or modified, shall be terminated and each party
thereto, together with its affiliates, officers, directors,
employees, and agents, shall be released and forever discharged
from all obligations, responsibilities and liabilities
arising from or relating to such lease agreement.
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5. Section 3.1(c) of the Agreement is amended to read as follows:
During the Conversion Period, EDS will provide those services
and instructions ("Conversion Services") reasonably required
for Customer to convert to and use the EDS Systems, as set
forth in Schedule E. Customer will cooperate in the conversion
effort, perform its obligations set forth in Schedule E, and
timely provide whatever information, data, clerical and office
support, management decisions, approvals and signoffs that EDS
reasonably requires. During the Conversion Period and in
accordance with the plan set forth in Schedule F, EDS will
train designated Customer personnel in the proper use of the
ITI System to enable such personnel to train Customer's user
personnel in the use of such ITI Systems. Customer will
cooperate with EDS in scheduling training in conjunction
with Customer's conversion to such ITI Systems.
6. Section 3.2(a) of the Agreement is amended to read as follows:
(i) Beginning on the Operational Date, operate the EDS
Systems at the Data Center, and accept data and other
input from Customer. EDS will make daily, monthly and
other reports and output, including specially requested
reports, available to Customer at the Data Center for
delivery or transmit them to Customer, subject to
Customer's timely delivery or transmission of data and
other input to the Data Center for processing.
(ii) EDS will provide the Services in accordance with the
schedule provided to Customer by EDS upon commencement
of the Services, which may be updated by EDS from time
to time ("Services Schedule"). EDS will provide
Customer 30 days prior written notice describing
changes to the Services Schedule that materially affect
Customer's operations ("Material Schedule Change") and
giving the date on which such Material Schedule Change
will be effective. If EDS gives Customer notice of a
Material Schedule Change and Customer gives EDS written
notice of Customer's objection to such change at least
15 days prior to the effective date of such Material
Schedule Change, then the parties will mutually agree
on a revised Services Schedule. Until the parties are
able to agree on a revised Services Schedule, however,
EDS will provide Services in accordance with its then
standard Services Schedule.
(iii) EDS will not be responsible for the loss of any input
during transit (including, without limitation, transit
by courier service or over datacommunication lines);
provided, however, that EDS will be responsible for
input or output from the time such input or output is
received by EDS at the Data Center until the time such
input or output is released at the Data Center for
transmission or delivery to Customer.
7. The first sentence of Section 3.2(d) of the Agreement is amended to
read as follows:
At no additional charge to Customer, correct any errors in
customer files that result in errors in reports or other output
where such errors (i) are due solely to either malfunctions of
EDS' equipment or the EDS Systems or errors of EDS' operators,
programmers or other personnel, and (ii) are called to EDS'
attention within the time frames specified in Section
5.3.
8. A new second sentence is added to Section 3.2(f) to read as follows:
If any such change will have a material adverse effect on
Customer's operations, then EDS
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will give Customer 30 days' prior notice of such change.
9. A new Section 3.2(h) is added to the Agreement to read as follows:
So long as John Kreighbaum is an executive officer of Customer
and Max Tipton is an EDS employee, EDS will assign Max Tipton
(or another mutually agreeable EDS employee) as the primary
contact responsible for managing activities relating to the
Services provided to Customer.
10. The second sentence of Section 3.3 of the Agreement is amended to read
as follows:
EDS will provide to such auditors and inspectors reasonable
assistance, and Customer will compensate EDS for any Additional
Services provided in connection with the audit or inspection;
provided, however, that if Customer provides EDS with at least
48 hours prior notice of the audit or inspection, then EDS will
waive the charges for up to eight man hours per year of
Additional Services provided in connection with such audit
or inspection.
11. The first sentence of Section 3.4 of the Agreement is amended to read
as follows:
EDS will make reasonable commercial efforts to maintain the EDS
Systems so that they will not be disapproved by any federal or
state regulatory authority with jurisdiction over Customer's
business.
12. New sixth sentence is added to Section 3.4 of the Agreement to read as
follows:
EDS will identify such third-party System(s) to Customer.
13. The second sentence of Section 3.5 of the Agreement is amended to read
as follows:
Upon request, EDS will also provide to Customer one copy of
EDS' most recent independent Data Center EDP audit at the
lesser of (a) $50.00 per copy, or (b) EDS' then standard
charge for such copy.
14. A new Section 3.6 is added to the Agreement to read as follows:
FUTURE TECHNOLOGIES. EDS will use commercially reasonable
efforts to maintain a level of technology that EDS reasonably
and in good faith determines is appropriate for the performance
of the Basic Services. In addition, EDS will advise Customer of
advances in technology relating to Customer's operating needs
of which EDS becomes aware and which EDS believes Customer may
be interested in implementing. EDS will make available to
Customer as an Additional Service any technologies for which
EDS develops commercially available capabilities in the
future.
15. The second sentence of Section 6.2 of the Agreement is amended to read
as follows:
EDS agrees to hold in confidence all proprietary information of
Customer and its customers provided to EDS, and the provisions
of this sentence will survive the expiration or termination
of this Agreement for any reason.
16. The first sentence of Section 7.2 of the Agreement is amended to read
as follows:
If fifty percent or more of the stock or assets of
either CoBancorp, Inc. or PREMIERBank &
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Trust are acquired by another person or entity (whether by
merger, reorganization, sale, transfer, or other similar
transaction) and, in the case of an acquisition of PREMIERBank
& Trust, PREMIERBank & Trust does not continue to operate under
its current banking charter after such transaction, then EDS
and Customer will negotiate in good faith the terms and
conditions upon which this Agreement may be modified to
accommodate such transaction.
17. Section 7.3 of the Agreement is amended to read as follows:
(a) If Customer defaults in the payment of any charges or other
amounts due under this Agreement and fails to cure such default
within ten (10) days after receiving written notice specifying
such default, then EDS may, by giving Customer at least thirty
(30) days prior written notice thereof, terminate this
Agreement as of a date specified in such notice.
(b) Notwithstanding Section 7.3(a), EDS may not terminate this
Agreement pursuant to Section 7.3(a) for Customer's failure to
pay to EDS any amount that is reasonably disputed by Customer
in good faith so long as: (i) Customer notifies EDS promptly
after the receipt of the notice specified in Section 7.3(a) of
any disputed amount being withheld from EDS and specifies the
reasons why that amount is disputed; and (ii) all such amounts
so withheld are, by the end of the cure period specified in
Section 7.3(a), deposited into an Escrow Account
(defined below) as provided in Section 7.10.
18. Section 7.5 of the Agreement is amended to read as follows:
If either party becomes or is declared insolvent or bankrupt,
is the subject of any proceedings relating to its liquidation
or insolvency or for the appointment of a receiver, conservator
or similar officer, or makes an assignment for the benefit of
all or substantially all of its creditors or enters into any
agreement for the composition, extension, or readjustment of
all or substantially all of its obligations, then the other
party may, by giving such party prior written notice thereof,
terminate this Agreement as of a date specified in such
notice.
19. The first sentence of Section 7.6 of the Agreement is amended to read
as follows:
The parties acknowledge that upon termination of this
Agreement for any reason, including under Section 7.2, 7.3, or
7.4 (but excluding by election by either party not to renew
pursuant to Section 2.1 or termination by Customer pursuant to
Section 7.4, 7.5, 7.8, 7.9, or 9.5), EDS will incur damages
resulting from such termination that will be difficult if not
impossible to ascertain.
20. New fourth and fifth sentences are added to Section 7.6(a) of the
Agreement to read as follows:
As of the Effective Date, EDS' charge for master file tapes
is $250.00 per tape and EDS' charge for file layouts is $100.00
per layout. These charges are subject to change by EDS at any
time.
21. All references to "eighty percent (80%)" in Section 7.6(b) of the
Agreement are changed to "sixty percent (60%)."
22. A new Section 7.8 is added to the Agreement to read as follows:
TERMINATION AS OF SECOND ANNIVERSARY OF OPERATIONAL DATE. If for
any reason Customer is
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dissatisfied with the ITI System, then Customer may terminate this
Agreement as of the second anniversary of the Operational Date;
provided, however, that in order to terminate this Agreement under this
Section 7.8 Customer must give EDS at least ninety (90) days prior
written (a) notice of such termination, and (b) certification that
Customer is not deconverting to another Information Technology, Inc.
System. Upon the effective date of any termination under this Section
7.8, Customer will pay to EDS a payment calculated in accordance with
Section 7.7.
23. A new Section 7.9 is added to the Agreement to read as follows:
TERMINATION DUE TO AUDIT FINDINGS. If EDS receives a qualified going
concern opinion in connection with EDS' audited financial statements
and EDS fails to either (a) substantially cure the qualified findings
that concern Customer within ninety (90) days after receiving written
notice from Customer specifying the qualified findings that concern
Customer, or (b) for those findings that cannot reasonably be cured
within ninety (90) days, promptly commence curing such finding and
thereafter proceed with all due diligence to substantially cure the
finding, then Customer may, by giving EDS at least thirty (30) days
prior written notice thereof, terminate this Agreement as of a date
specified in such notice. Upon the effective date of any termination
under this Section 7.9, Customer will pay to EDS a payment Calculated
in accordance with Section 7.7.
24. A new Section 7.10 is added to the Agreement to read as follows:
ESCROW ACCOUNT. An interest~bearing escrow account (the "Escrow
Account") shall be established as follows:
(a) The Escrow Account shall be an interest-bearing account
established by Customer in the name of Customer at a major
national bank selected by Customer and reasonably acceptable to
EDS, and shall be and remain the property of Customer subject
to the disbursement of funds provisions set forth below.
Customer will pay all costs associated with the Escrow Account.
(b) The Escrow Account shall be established pursuant to an escrow
agreement that provides that the funds therein, including
accrued interest, shall be disbursed to EDS or Customer, as
applicable, only in accordance with the mutual agreement of EDS
and Customer or an arbitration or judicial decision binding on
EDS and Customer.
(c) After resolution of any dispute with respect to which funds
were placed in the Escrow Account pursuant to the mutual
agreement of EDS and Customer or an arbitration or judicial
decision binding on EDS and Customer, and after payment from
the Escrow Account of all amounts due to EDS with respect to
that dispute, including accrued interest as agreed upon by the
parties or awarded by such arbitral or judicial tribunal, any
remaining portion of the funds which were placed in the Escrow
Account with respect to that dispute, including undisbursed
accrued interest thereon, shall be promptly paid to Customer.
(d) If the funds which were placed in the Escrow Account with
respect to any dispute are not sufficient to satisfy any
arbitral or judicial award or mutually agreed amount due to EDS
with respect to that dispute, then Customer shall promptly
pay to EDS the balance due, including accrued interest thereon
as agreed upon by the parties or awarded by such arbitral or
judicial tribunal.
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25. A new Section 7.11 is added to the Agreement to read as follows:
RELEASE OF TAPES.
(a) Notwithstanding anything to the contrary in Section 6.2 or
7.6, EDS will release to Customer test tapes and other data of
Customer in the event (i) Customer terminates this Agreement
under Section 7A, (ii) EDS reasonably disputes in good faith
Customer's right to terminate this Agreement under Section 7.4,
and (iii) prior to the effective date of such termination,
Customer deposits one-third of the amount described in Section
7.6 into the Escrow Account as provided in Section 7.10.
(b) Notwithstanding anything to the contrary in Section 7.7, EDS
will release to Customer test tapes and other data of Customer
in the event (i) Customer does not renew this Agreement under
Section 2.1, (ii) Customer reasonably disputes in good faith
the amount owed under Section 7.7, and (iii) prior to the
expiration date, Customer deposits the amount described in
Section 7.7 into the Escrow Account as provided in Section
7.10.
26. The second sentence of Section 8.1 of the Agreement is amended to read
as follows:
If EDS becomes liable to the Customer under this Agreement for any
other reason, whether arising by negligence or otherwise, then (a)
except for damages recoverable against EDS for EDS' willful misconduct,
the damages recoverable against EDS for all events, acts, delays, or
omissions will not exceed in the aggregate the compensation payable to
EDS pursuant to Section 4.1 of this Agreement for the lesser of the
months that have elapsed since the Operational Date or the six (6)
months ending with the latest month in which occurred the events, acts,
delays or omissions for which damages are claimed, and (b) the measure
of damages will not include any amounts for indirect, consequential or
punitive damages of any party, including third parties, or damages
which could have been avoided had the output provided by EDS been
verified before use.
27. The first sentence of Section 8.3 of the Agreement is amended to read
as follows:
Each party will be excused from performance under this Agreement,
except for any payment obligations, for any period and to the extent
that it is prevented from performing, in whole or in part, as a result
of delays caused by the other party or any act of God, war, civil
disturbance, court order, labor dispute, severe inclement weather (such
as snow or ice storms) third party nonperformance or other cause beyond
its reasonable control, including failures, fluctuations or non
availability of electrical power, heat, light, air conditioning or
telecommunications equipment.
28. The first sentence of Section 8.6 of the Agreement is amended to read
as follows:
EDS is entitled to rely upon and act in accordance with any
instructions, guidelines or information provided to EDS by Customer,
which are given by persons designated by Customer to EDS in writing
from time to time, and will incur no liability in doing so.
29. The first sentence of Section 9.3 of the Agreement is amended to read
as follows:
Any notice under this Agreement will be deemed to be given when
delivered by hand, by a
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nationally recognized overnight courier service, or when mailed
by United States mail, first class postage prepaid, and addressed to
the recipient party at its address set forth above and to the
attention of its President in the case of Customer and to the
attention of Division President, Financial Services Division in the
case of EDS.
30. Section 9.9 of the Agreement is amended to read as follows:
This Agreement will be governed by and construed in accordance with
the laws of the State of Ohio. Arbitration of any dispute under this
Agreement will be conducted in Cleveland, Ohio, unless the
parties agree to another location.
31. A new Article X is added to the Agreement to read as follows:
ARTICLE X - LEASED PREMISES
10.1 DEFINITIONS. In this Article X:
(a) "Common Areas" means areas of each Building that are for the
common use of, or made available for use by, all tenants of
such Building, including without limitation common entrances,
halls, lobbies, elevators, stairways and accessways and ramps,
delivery passages, public toilets, parking lots, drives,
walkways, green spaces, or other facilities related to such
Building owned, operated or maintained, in whole or in part, by
Customer.
(b) "Lease" means the agreement set forth in this Article X.
(c) "Elyria Lease Term" means the period commencing on the
Effective Date and terminating on the earlier of (i) the
expiration or termination of this Agreement, or (ii) the date
the Lease of the Elyria Premises is terminated as set forth in
this Article X. "Powell Lease Term" means the period
commencing on the date on which the Powell Building is ready
for occupancy, as determined by the issuance of a certificate
of occupancy issued by the appropriate regulatory authority,
and terminating on the earlier of (i) the expiration or
termination of this Agreement, or (ii) the date the Lease of
the Powell Premises is terminated as set forth in this
Article X.
(d) "Premises" means (i) approximately 6,500 square feet in the
building (the "Elyria Building") located at 6020 Lake Avenue,
Elyria, Ohio 44036; and (ii) approximately 3,500 square feet in
the building (the "Powell Building") to be located at lot 1778
Wedgewood Section 6, Liberty Township, Ohio. The Premises
located in the Elyria Building is referred to as the "Elyria
Premises" and the Premises located in the Powell Building is
referred to as the "Powell Premises." The Elyria Building and
the Powell Building are collectively referred to as the
"Buildings."
(e) "Elyria Rental" means $30,000.00 per year or $2,500.00 per
month.
(f) "Powell Rental" means $30,000 per year or $2,500.00 per month.
10.2 GRANTING CLAUSE. Customer, in consideration of the covenants and
agreements to be performed by EDS under this Article X, and upon the
terms and conditions stated in this Article X, does hereby lease,
demise and let unto EDS, and EDS does hereby take from Customer, (a)
the Elyria Premises, to have and to hold for the Flyria Lease Term, and
(b) the Powell Premises, to have and to hold for the Powell Lease
Term.
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10.3 USE. EDS shall use the Premises for general office and computer data
processing uses and for any other purpose which is related to EDS'
business.
1OA RENT.
(a) During the Elyria Lease Term, monthly installments of Elyria
Rental shall be due and payable on or before the first day of
each calendar month. Rental for any fractional month shall
be prorated on actual days.
(b) During the Powell Lease Term, monthly installments of Powell
Rental shall be due and payable on or before the first day of
each calendar month. Rental for any fractional month shall
be prorated on actual days.
(c) The Elyria Rental and the Powell Rental shall be referred to
collectively as the "Rental." Rental shall include any and all
operating expenses (including, without limitation, taxes,
insurance, utilities, repairs, maintenance and replacements for
the Premises, the Buildings and the Common Areas) and use of
existing furniture and equipment owned by Customer. EDS shall
be responsible for obtaining telephone semoes at EDS' sole cost
and expense.
(d) Customer may increase the Rental each year by the same
percentage that EDS is entitled to increase the charges for
Services under Section 4.4 of this Agreement.
10.5 REPAIRS. Customer shall, at Customer's sole expense, without pass
through to EDS, keep the Buildings, including the Premises, in good
repair and free from nuisance of any kind. Customer shall perform all
such repairs promptly and in a workmanlike manner, and shall not
unreasonably interfere with EDS' conduct of its business, its use of or
access to the Premises during such repairs.
10.6 CUSTOMER'S INSURANCE. Customer shall, at its sole cost and expense,
obtain and maintain all risk property insurance for the Buildings,
including the Premises, upon a full replacement cost basis, with no
coinsurance requirement; commercial general liability insurance,
including blanket contractual liability coverage, with limits of not
less than $2,000,000.00, combined single limit, for personal injury and
property damage; and statutory workers compensation and employers
liability coverage. Customer shall deliver, upon written request, a
certificate evidencing such coverages. Such insurance policies shall
provide for no cancellation or material alteration without thirty
(30) days' prior written notice to EDS.
10.7 FIRE OR OTHER CASUALTY.
(a) In the event either the Elyria Premises or the Powell Premises
should be (i) totally destroyed by fire, tornado or other
casualty (such determination to be completed within thirty (30)
days of destruction, except as otherwise provided herein, by an
architect (the "Architect") of recognized good reputation
selected by Customer and approved by EDS, which approval shall
not be unreasonably withheld or delayed), (ii) damaged to the
extent that rebuilding or repairs cannot be completed within
one hundred twenty (120) days (as estimated by the Architect)
after the date of casualty, or (iii) either of the Buildings or
the Premises is damaged to the extent rendering
such Premises unsuitable for the use in effect as of the
beginning of the applicable Lease Term, the Lease of the
applicable Premises shall terminate as of the date of
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casualty, and Customer and EDS shall be released from any and
all obligations under this Lease related to such Premises,
including the payments of Rental, retroactive to the
casualty date.
(b) If either the Elyria Premises or the Powell Premises should be
partially damaged by fire, tornado or other casualty covered by
Customer's insurance and can be rebuilt within one hundred
twenty (120) days of the casualty date, as reflected in the
Architect's certificate, or if the damage is such that neither
Customer nor EDS elect to terminate the Lease of such Premises,
then Customer shall, at its sole cost and expense, without pass
through to EDS, commence to rebuild or repair the damaged
Premises and shall proceed with diligence to restore the
damaged Premises to substantially the same condition in which
it was immediately prior to the casualty. EDS shall be allowed
a proportionate diminution of Rental during the time the
Premises or any portion thereof is unfit for occupancy.
(c) Notwithstanding any provision herein to the contrary, in the
event the repair of such damage has not been completed within
one hundred twenty (120) days of the casualty, EDS may
terminate the Lease as to the damaged Premises by giving
written notice to Customer within thirty (30) days after the
expiration of one hundred twenty (120) days after the casualty.
Notwithstanding the foregoing, in the event such damage or
destruction occurs in the last twelve (12) months of the
applicable Lease Term, or any renewal or extension thereof, EDS
or Customer shall have the option to terminate the Lease as to
the damaged Premises.
10.8 FORCE MAJEURE. Neither Customer nor EDS shall be deemed to be in
default of this Lease if such default is due to acts of God, acts of
the public enemy, acts of governmental authority, or any other
circumstances which are not within the parties' respective control.
10.9 INDEMNIFICATION. Notwithstanding Section 8.4 of this Agreement, EDS and
Customer shall indemnify, defend and hold the other party harmless from
any and all liabilities, responsibilities or claims arising from any
breach or default in the performance of any obligation to be performed
by indemnitor under the terms of this Article X or arising from any
act, neglect, fault or omission of indemnitor or indemnitor's
respective agents, representatives or employees, and from and against
all costs, reasonable attorneys' fees, expenses and liabilities
incurred in or about such claim or any action or proceeding brought
thereon. In case any action or proceeding shall be brought against
indemnitee by reason of any such claim, indemnitor, upon receipt of
notice from indemnitee, shall defend the same at its expense.
10.10 HAZARDOUS MATERIALS. Customer and EDS shall indemnify, defend and hold
the other harmless from all claims, costs, expenses, actions, causes of
action or liabilities incurred or suffered by indemnitee which may
arise with regard to Hazardous Materials (defined below) in or about
either of the Premises, either of the Buildings or any other buildings
in the development, including, without limitation, the non~compliance
of Customer or EDS, either of the Premises, either of the Buildings, or
the property on which they are located with the Law (defined below).
The term "Hazardous Materials" shall mean any chemical, substance,
material, or waste, or component thereof, whether in a solid, liquid or
gaseous state, which is now or hereafter listed, defined, or regulated
as a hazardous or toxic chemical, substance, material, or waste, or
component thereof, pursuant to the Law, or which would trigger any
employee or community "right-to-know" requirements adopted by any such
body, or for which any such body has adopted any requirements for the
preparation or distribution of any material safety data sheet. The term
"Law" shall mean any and all applicable laws, statutes,
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ordinances, codes, rules or regulations promulgated by any federal,
state or local governing or regulatory body having jurisdiction. In
case any action or proceeding shall be brought against the indemnitee
by reason of any such claim, cost, expense, action, cause of action or
liability, the indemnitor, upon notice from indemnitee, shall defend
the same at its sole cost and expense.
10.11 BUILDING COMPLIANCE. Customer will be solely responsible for the
compliance of the Premises, the Buildings (including all Common Areas),
and all exterior facilities of the Buildings with the Law (including,
without limitation, the Americans with Disabilities Act). In addition,
Customer represents and covenants that, to the best of Customer's
knowledge, (a) each of the Buildings is in compliance with the Law
(and, upon completion, the Powell Building will be in compliance with
the Law), and (b) no release or spill of Hazardous Materials has
occurred in or about either of the Buildings which has not been cured.
10.12 OPTION TO CANCEL.
(a) Either EDS or Customer may terminate (i) the Lease of either
or both Premises by giving the other party one-hundred eighty
(180) days' prior written notice, or (ii) if an event of force
majeure described in Section 10.8 occurs, immediately the Lease
of the damaged Premises by giving the other party written
notice. If Customer does not purchase the Services described as
Back Office Services in Schedule B to this Agreement, then EDS
may, by giving prior written notice to Customer, terminate this
the Lease of either or both Premises as of a date specified
in such notice.
(b) If the Lease is terminated as set forth in Section 10.12(a),
then all obligations for Rental as to such Premises shall cease
as of the effective date of such termination.
10.13 SURRENDER OF PREMISES. At the end of the Lease Term, EDS may remove all
movable trade fixtures installed by EDS and all furniture and equipment
owned by EDS. EDS will remove such fixtures, furniture and equipment in
a reasonable and workmanlike manner so as not to damage the
Premises.
32. SERVICES FOR AFFILIATED INSTITUTIONS.
(a) SCOPE OF TERM "CUSTOMER". The term "Customer" when used in any
provision of the Agreement or any other instrument or document executed
in connection with the Agreement that sets forth a duty, obligation,
liability, representation, warranty or covenant of any nature of
Customer ("Obligation") includes both (i) CoBancorp, Inc., and (ii) the
Affiliated Institution (as defined below) and any Additional
Institutions (as defined below) to the extent that any such
institutions may be the appropriate party or parties to satisfy or
perform any such Obligation. However, EDS will have the right (but not
the obligation) to rely solely upon CoBancorp, Inc. for the
satisfaction or performance of each such Obligation, and CoBancorp,
Inc. agrees to satisfy or perform or to cause the satisfaction or
performance of each such Obligation and to take all actions necessary
or advisable in connection therewith. "Affiliated Institution" means
PREMIERBank & Trust (successor-in-interest to Lorain County Bank), an
Ohio state bank.
"Additional Institutions" as used herein means state or national banks
that are no less than majority-owned directly or indirectly by
CoBancorp, Inc. for which EDS agrees to provide Services upon the
written request of CoBancorp, Inc.
(b) AGENCY. CoBancorp, Inc. represents and warrants to EDS that it has the
authority to act as
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the duly authorized and designated agent of each Affiliated
Institution for and on behalf of such institution with respect
to all matters relating to the Agreement, including without
limitation the giving or withholding of any agreement,
approval, acceptance, consent, notice or other action required
or permitted by the Agreement or any Ratification Agreement (as
defined below), the making of all payments to EDS and the
waiver, amendment or modification of any provision of the
Agreement or any Ratification Agreement.
(c) PAYMENT. Until such time, if ever, that there is a default in
the payment when due of any amount due to EDS under the
Agreement, EDS acknowledges that it will receive payment from
CoBancorp, Inc. for all amounts due under the Agreement;
provided, however, that each Affiliated Institution will at all
times be liable for its pro rata share of the amount due for
the Services that are allocable to the Affiliated Institution.
Upon any default in the payment of any amount due to EDS under
the Agreement, each Affiliated Institution will, at EDS'
request, thereafter pay EDS directly for its pro rata share of
all amounts due for the Services that are allocable to the
Affiliated Institution, including without limitation the
Affiliated Institution's pro rata share of all amounts due
under Section 7.6 of the Agreement, if applicable.
Notwithstanding any other provision of the Agreement,
CoBancorp, Inc. will in all events be liable for all amounts
due or to become due under the Agreement.
(d) RATIFICATION AND ACCEPTANCE AGREEMENTS.
(i) The Affiliated Institution will execute the Financial
Institution Ratification and Acceptance Agreement
("Ratification Agreement") in the form attached as
Schedule D concurrently with the execution of the
Agreement.
(ii) EDS will have no obligation to provide Services to an
Additional Institution unless such Additional
Institution has executed and delivered to EDS a
Ratification Agreement. Upon and as of such event, such
Additional Institution will be deemed an Affiliated
Institution within the meaning of, and a party to, the
Agreement (without the necessity of CoBancorp, Inc.
re~executing the Agreement as agent for such Additional
Institution). CoBancorp, Inc. and EDS agree to amend
the Agreement to reflect the inclusion of Additional
Institutions that become Affiliated Institutions within
the meaning of the Agreement.
(e) TERMINATION OF AFFILIATION. An Affiliated Institution may not
cease to be a party to, bound by, and an Affiliated Institution
under, the Agreement without the prior written consent of EDS,
even if such Affiliated Institution ceases to be an
affiliate of CoBancorp, Inc.
33. Except as amended by this Addendum, the Agreement will be and remain in
full force and effect in accordance with its terms. Capitalized terms
used in this Addendum will be as defined in the Agreement unless
otherwise expressly defined in this Addendum.
34. Three (3) original copies of this Addendum will be executed and
submitted to EDS by Customer. This Addendum will become effective when
EDS executes this Addendum. EDS will return one of the executed
copies to Customer.
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IN WITNESS WHEREOF, the parties have executed this Addendum as of the date
set forth above.
ELECTRONIC DATA SYSTEMS COBANCORP, INC.
CORPORATION
By: /s/ Max Tipton By: /s/ John S. Kreighbaum
------------------- ------------------------
Printed Printed
Name: Max Tipton Name: John S. Kreighbaum
Title: Area Manager Title: President & Chief Executive Officer
Date: Feb 15, 1995 Date: 2/15/95
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ADDENDUM
THIS ADDENDUM ("Addendum") to the Agreement for Information Technology Services
between ELECTRONIC DATA SYSTEMS CORPORATION ("EDS") and COBANCORP, INC.
("Customer"), dated of even date herewith as amended and modified (the
"Agreement"), is between Customer and EDS.
The parties agree to amend the Agreement as follows:
1. DEFINITIONS. In this Addendum, the terms listed in Exhibit A will be as
defined in Exhibit A.
2. EDS SYSTEMS. Section 1.1(g) of the Agreement is amended to read as
follows:
"EDS Systems" are all Systems, except for Systems provided by
Customer and the Output Management Software, that EDS uses to
provide Services, including without limitation any
improvements, modifications or enhancements made by EDS to any
System and provided to Customer under this Agreement.
3. EDS RESPONSIBILITIES.
(a) In the provision of Services, EDS will make the Output
Management Equipment available to Customer at Customer's
principal location. Notwithstanding the location of the Output
Management Equipment at Customer's location, all rights, title,
and interest in and to the Output Management Equipment will be
and remain in EDS and, except as expressly provided in this
Addendum, Customer will have no interest in the Output
Management Equipment.
(b) EDS will arrange for the initial transportation of the Output
Management System to Customer's principal location. The initial
installation of the Output Management System will be performed
by EDS at no cost to Customer. Customer will be responsible for
any relocation of the Output Management System. Customer will
provide prior written notice to EDS of all such relocations.
(c) EDS will arrange with the vendor of any Output Management
Software owned by a third party for a direct license, or a
sublicense through EDS, for Customer for such System. Customer
agrees to execute any such license or sublicense required by
the vendor.
(d) EDS will be responsible for maintenance at Customer's location,
commonly known as "site maintenance", of the Output Management
System after installation and Customer will pay EDS the then
standard charges of EDS for such maintenance.
(e) After installation of the Output Management System, EDS will
electronically transmit Reports to Customer, subject to
Customer's timely delivery or transmission of data and other
input to the Data Center for processing. Notwithstanding any
provision of the Agreement to the contrary, neither hard copies
nor microfiche of Reports will be made available for delivery
to Customer. EDS will transmit the Reports in accordance with
the schedule provided to Customer by EDS upon installation of
the Output Management System, which may be updated by EDS
from time to time.
(f) EDS will provide for Customer's use one copy of EDS' standard
user documentation and one copy of any revisions describing the
use of the Output Management System. Upon
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Customer's request, EDS will provide additional copies of such
documentation at EDS' then standard charges.
(g) EDS will establish, modify or substitute from time to time any
processing priorities, programs, procedures, or
telecommunication lines, modems or other equipment used in the
operation of the Output Management System or the provision of
the Services provided under this Addendum that EDS reasonably
deems necessary, and notify Customer of any such changes that
will affect Customer's operations.
(h) EDS will archive on optical media the Reports previously
transmitted to Customer pursuant to Section 3(e) of this
Addendum. If Customer requests information from such optical
media, EDS will make such information available to Customer and
Customer will pay EDS the then standard charges of EDS for such
Service.
4. CUSTOMER RESPONSIBILITIES.
(a) Customer, with the advice of EDS, will prepare and maintain
the space in which the Output Management Equipment will be
installed in accordance with the manufacturer's specifications
as to environment, power, HVAC and the like. In addition,
Customer is responsible for providing, installing, maintaining,
and paying all costs associated with (i) the cabling for the
Output Management Equipment, and (ii) the dial-up
telecommunication line required for use of the Output
Management System.
(b) Customer will take good care of the Output Management
Equipment and will use such equipment only in the manner
contemplated by the manufacturers thereof. Upon the expiration
or earlier termination of this Agreement, the Output Management
Equipment will be in the same condition as when delivered,
ordinary wear and tear excepted.
(c) Without EDS' prior written consent, Customer will not (i)
install any System other than the Output Management Software on
the Output Management Equipment or otherwise modify the Output
Management System, (ii) sell, assign, lease, transfer, or
disclose to any third party the Output Management System, (iii)
copy or reproduce the Output Management Software, or (iv)
reverse assemble, reverse compile, or otherwise recreate the
Output Management Software.
(d) Customer will comply with all operating instructions for the
Output Management System which are issued by EDS from time to
time. Except as otherwise provided in this Addendum, Customer
will be responsible for the supervision, management, and
control of its use of the Output Management System.
(e) At the expiration or earlier termination of the Agreement for
any reason, Customer will make the Output Management System
available to EDS for pickup.
5. EDS CHARGES. Customer will pay EDS for the Output Management System as
set forth in Exhibit C to this Addendum. The charges set forth in
Exhibit C will be subject to the adjustment provisions of the
Agreement, including without limitation the cost of living
adjustment provision of the Agreement.
6. OUTPUT MANAGEMENT SOFTWARE. All Output Management Software is and will
remain the exclusive property of EDS or licensors of such Output
Management Software, as applicable, and except as expressly provided in
this Addendum, Customer shall have no ownership interest or other
rights in any Output Management Software. Customer acknowledges that
the Output Management Software includes EDS proprietary information and
agrees to keep the Output Management Software
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confidential at all times. Upon the expiration or termination of this
Addendum, Customer will return all copies of all items relating to the
Output Management Software which are in the possession of Customer and
certify to EDS in writing that Customer has retained no material
relating to the Output Management Software.
7. ADDENDUM CONTROLS. The terms and conditions of this Addendum apply
solely to the Output Management System and do not modify either party's
obligations relating to other Systems, Services or equipment being
provided under the Agreement. The Agreement will also apply, to the
extent appropriate, to the provision by EDS of the Output Management
System and the related Services described in this Addendum. However,
with regard to the Output Management System and the related Services
described in this Addendum, in the event of any conflict between the
Agreement and this Addendum, the terms and conditions of this
Addendum will control.
8. AGREEMENT. Except as amended by this Addendum, the Agreement will be
and remain in full force and effect in accordance with its terms.
Capitalized terms used in this Addendum will be as defined in the
Agreement unless otherwise expressly defined in this Addendum.
9. EFFECTIVE DATE. Three (3) original copies of this Addendum will be
executed and submitted to EDS by Customer. This Addendum will become
effective as of the date set forth below when EDS executes this
Addendum. EDS will return one of the executed copies to Customer.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date set
forth above.
ELECTRONIC DATA SYSTEMS COBANCORP, INC.
CORPORATION
By: /s/ Max Tipton By: /s/ John S. Kreighbaum
----------------------- -----------------------------
Printed Printed
Name: Max Tipton Name: John S. Kreighbaum
Title: Area Manager Title: President & Chief Executive Officer
Date: Feb 15, 1995 Date: 2/15/95
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