Exhibit 10.6
OPERATIONS & DATA PROCESSING SERVICES AGREEMENT Effective January 1, 2005
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THIS OPERATIONS & DATA PROCESSING SERVICE AGREEMENT is made and entered
into this 1st day of January, 2005, by and between Republic First Bank
("Customer") and BSC Services Corp ("Servicer"), and updated as necessary to
assure an objective allocation of costs, consistent with arms length business
practices and all applicable regulations. Actual costs will be billed, based
upon good faith estimates of time allocations, unless both parties to the
contract agree to a mark-up. Without such mark-up, the services performed are
under-market; however, this is acceptable, since neither party is suffering a
detriment. So that the Customer can independently gauge the below-market,
objective allocation of costs, detail of salary and time allocations will be
provided as requested. Should such objective allocations change prior to
billings, Customer agrees to modify the next billing to "true up" billings to
the actual amounts of the new allocations.
In consideration of the mutual promises set forth herein, Servicer and
Customer agree as follows:
SECTION 1 - SERVICES PROVIDED
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1.1 Operations & Data Processing Services. Customer hereby engages
Servicer to provide operations and data processing services to Customer during
the term of this Agreement, such services ("Services") to include facilities
maintenance, IT security, technology, deposit, loan accounting, cash management
products, wire services and processing of all accounts of Customer associated
with processing application charges as set forth in Schedule A attached hereto.
Customer shall transport or transmit to Servicer's designated data center, at
Customer's risk and expense and in Servicer specified formats, all items, data
or information required to enable Servicer to process daily account information
and update Customer's master files at the end of each business day. Daily
reports shall be available to Customer at data center or available for
transmission to Customer on the next business day following the processing date
in accordance with an agreed delivery schedule, subject to Customer's timely
delivery of its items, data or information to the data center for processing. If
Customer requests on-line data inquiry and update capability, Servicer's data
processing system shall be made available for such purposes in accordance with
Servicer's standard availability.
1.2 Financial Accounting/Reporting. All general ledger accounting
functions will be performed. These services include maintenance of general
ledger, and reconciliation of all accounts, monthly closing, preparation of call
reports, preparation of monthly financial statements and related board reports,
asset/liability management reporting, tax reporting and preparation and
maintenance of the budget.
1.3 Human Resources Function. Human resources functions will be
provided. These services include preparation of payroll, benefit administration,
and assistance in recruitment.
1.4 Compliance. Compliance reviews, training, implementation of new
regulations, and assistance to regulatory authorities in assuring compliance
with regulatory and examination team requirements will be provided.
SECTION 2 - OTHER SERVICES AND OBLIGATIONS
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2.1 Item Processing and Special Services. If requested by Customer,
Servicer may, at its option, provide certain item processing services through
its designated data center or outside contractor, which services may include
receipt and capture of Customer items to magnetic media, balancing of captured
and rejected transactions to proof totals and notification to Customer of any
out-of-balance condition. If requested by Customer, Servicer will provide any
special back office services indicated in the Services Schedule attached with
charges reflected in Schedule A, which services may include proof and balancing,
inclearing, proof of deposit, reject processing, bulk filing, statement
preparation, filming and research services. Customer shall have full
responsibility to determine the authenticity, genuineness or accuracy of items
delivered by Customer and the accuracy of the reports based thereon.
2.3 Training. Servicer shall provide to Customer service standard
training programs for the purpose of training Customer's personnel in the proper
use of Servicer's procedures, systems and reports. Customer shall provide
competent personnel for such training and shall cooperate with Servicer in
properly scheduling such training in conjunction with Customer's conversion to
Servicer's standard training.
SECTION 3 - PAYMENT OF FEES
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3.1 Service Charges. Customer agrees to pay Servicer for the Services
in accordance with the charges set forth in Schedule A attached hereto. Changes
will be determined to approximate market rates as necessary. Payment shall be
due monthly upon receipt of invoice. Any charges not paid within thirty (30)
days of invoice date shall bear interest at the rate of
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1% per month. Customer agrees to pay all applicable sales or other taxes with
respect to the Services. After expiration of one (1) year from the date of
initial processing under this Agreement, the charges shall be reevaluated on the
basis of updated time/expense allocations
SECTION 4 - TERM OF AGREEMENT
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4.1 Term. This Agreement is effective and legally binding as of the
date hereof and, unless terminated as hereinafter provided, shall continue for a
period of ten years from January 1, 2005. Upon agreement of the Boards of
Directors of both Customer and Servicer, the term may be shortened or otherwise
modified.
SECTION 5 - PROTECTION OF CUSTOMER DATA/AUDIT/COMPLIANCE WITH REGULATIONS
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5.1 Confidentiality. All data relating to Customer's business provided
to Servicer by Customer shall be treated confidentially and safeguarded by
Servicer using the same care and discretion, which Servicer uses with data it
regards as confidential.
5.2 Access to Personnel, Systems and Records/Audit. Consistent with
normal business standards and regulatory requirements, Servicer will be subject
to reasonable access to auditors.
5.3 Compliance with Regulations. Servicer agrees to comply with
all applicable regulations.
SECTION 6 - TERMINATION
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6.1 Termination for Default. Either Customer or Servicer may terminate
this Agreement upon material default of the other party under this Agreement and
failure of such defaulting party to cure such default within one hundred eighty
(180) days after receipt of written notice specifying the event of default
claimed. If such default is not cured within such 180-day period, and the
terminating party intends to terminate, the terminating party must within ten
(10) days thereafter give thirty (30) days written notice of termination.
SECTION 7 - GENERAL
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7.1 Governing Law. This Agreement shall be governed by and constructed
in accordance with the laws of the State of Delaware. This Agreement has been
accepted in and shall be performable in New Castle County, Delaware.
7.2 Entire Agreement. This Agreement constitutes the entire integrated
agreement between the parties, hereby superseding any and all previous
representations, understandings or agreements, and may be amended only by an
instrument in writing signed by Customer and an executive officer of Servicer.
SERVICER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OTHER THAN
THOSE CONTAINED HEREIN.
7.3 Assignment. Neither Customer nor any successor, receiver or
assignee shall directly or indirectly assign this Agreement (whether such
assignment is effected in connection with a sale of Customer's assets, stock or
through merger, an insolvency proceeding or otherwise) without the prior written
consent of Servicer.
7.4 Binding Effect. This Agreement is binding on the parties hereto and
their respective successors and assigns. Customer represents that the officer
signing below is duly authorized to enter into this Agreement on behalf of
Customer. If amended, this Agreement shall be deemed binding on Servicer only
when signed by an executive officer of Servicer.
IN WITNESS WHEREOF, Customer and Servicer have entered into this revised
Agreement.
BSC Services Corp.
BY: /s/ Paul Frenkiel
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Paul Frenkiel
TITLE: Chief Financial Officer
DATE: January 31, 2005
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REPUBLIC FIRST BANK
BY: /s/ Robert Davis
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Robert Davis
TITLE: President
DATE: January 31, 2005
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