AGREEMENT FOR INFORMATION
TECHNOLOGY SERVICES
BETWEEN
FIDELITY FEDERAL BANK
AND
ELECTRONIC DATA SYSTEMS CORPORATION
AND
EDS INFORMATION SERVICES L.L.C.
AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES
THIS AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES ("Agreement") is
between Electronic Data Systems Corporation ("EDS"), a Delaware corporation with
an address at 5400 Legacy Drive, Plano, Texas 75024, EDS Information Services
L.L.C., ("EIS") a Delaware limited liability company with an address at 5400
Legacy Drive, Plano, Texas 75024, (all references to EDS in this Agreement will
be deemed to include EIS) and FIDELITY FEDERAL BANK ("CUSTOMER"), A FINANCIAL
INSTITUTION WITH AN ADDRESS AT 600 NORTH BRAND BOULEVARD, GLENDALE, CA 91203.
WHEREAS, Customer desires to purchase certain information technology
services from EDS, itself and through various of EDS' indirect, wholly-owned,
United States-based subsidiaries, including EIS.
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) "Customer Systems" are the Systems listed in Schedule D to be
provided by Customer for use in conjunction with EDS Systems.
(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.
(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.
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(m) "PC Software" means, if applicable, the PC-based software
applications to be utilized by Customer in connection with the
Services, as such software applications are described in Schedule A.
(n) "Renewal Terms" is defined in Section 2.1.
(o) "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.
(p) "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.
Other terms are defined elsewhere in this Agreement.
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 five (5) years from the Operational Date (the "Initial
Term"). Unless either party gives the other party written notice of intent
to terminate, at least twelve (12) months prior to the expiration date of
the Initial Term, then this Agreement will automatically renew for an
additional two (2) years (the "Renewal Term"). Thereafter, unless either
party gives the other party written notice of intent to terminate, at
least twelve (12) months prior to the expiration date of the Renewal Term,
then this Agreement will automatically renew for an additional two (2)
years and continue until either party terminates this Agreement under the
foregoing terms.
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 (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
4.3. 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 respect to Year 2000, as part of the Services, EDS will use
commercially reasonable efforts (a) with respect to EDS Systems
which are proprietary to EDS, to provide those improvements and
enhancements to such Systems so that they will maintain the
functionality existing as of the Effective Date taking into account
any processing, accepting, calculating, writing and outputting of
times or dates, or both, whether before, on or after 12:00 a.m.
January 1, 2000, and any time periods determined or to be determined
based on any such times or dates, or both, and (b) with respect to
EDS Systems which are not proprietary to EDS, to obtain from the
third party vendor thereof, those improvements and enhancements to
such Systems so that they will maintain the functionality existing
as of the Effective Date taking into account any processing,
accepting, calculating, writing and outputting of times or dates, or
both, whether before, on or after 12:00 a.m. January 1, 2000, and
any time periods determined or to be determined based on any such
times or dates, or both. Customer acknowledges and agrees that EDS
will not be responsible for (i) changes, modifications, updates or
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enhancements to, and any inaccuracies, delays, interruptions or
errors caused by, interfaces between the EDS Systems and any
software or systems which EDS does not operate or maintain as part
of the Services, (ii) any inaccuracies, delays, interruptions or
errors occurring as a result of incorrect data or data from other
systems, software, hardware, processes or third parties provided in
a format that is inconsistent with the format and protocols
established for EDS Systems including date data in two digit format,
even if such data is required for the operation of the EDS
proprietary software or systems, and (iii) any inaccuracies, delays,
interruptions or errors occurring as a result of incorrect data or
data from telecommunication hardware or systems.
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.
3.4 REGULATORY 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; provided, that if any such changes or modifications result in a
significant increase in EDS' cost of providing Services, EDS will be
entitled to increase the charges under this Agreement by an amount that
reflects a pro rata allocation of EDS' increased cost among the applicable
EDS customers. 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, 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.
3.6 PC SOFTWARE. EDS will either (i) license to Customer or (ii) arrange with
the appropriate third party vendor for a direct license, or a sublicense
through EDS, to Customer of the PC Software. Customer will execute any
such license or sublicense that may be required by such vendor and will be
responsible for compliance with all terms and conditions thereof. Such
license or sublicense will provide for Customer to have the use of the PC
Software at all times during the term of this Agreement.
ARTICLE IV - CUSTOMER RESPONSIBILITIES
4.1 MAINTENANCE OF EQUIPMENT. Customer will maintain all Equipment owned or
leased by Customer in good working order in accordance with manufacturer's
specifications.
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4.2 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.
4.3 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 (i) within two Business Days after receipt of
daily reports or output, (ii) within five Business Days after receipt of
annual, quarterly, or monthly reports or output, and (iii) within three
Business Days after receipt of all other reports or output.
4.4 PROVISION OF DATA. Customer will be 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.
4.5 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 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 4.3, 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.
4.6 CUSTOMER SYSTEMS. Customer will provide, at Customer's expense, the
Customer Systems. Customer will be responsible for any license or
maintenance fees related to providing the Customer Systems for use by EDS
in connection with the Services. Customer will, at Customer's expense,
ensure that the Customer Systems are at all times compatible with the EDS
Systems and EDS will have no liability hereunder for any delay or failure
to perform Services which arises as a result of the failure of Customer to
maintain any Customer System so that it is compatible with the EDS
Systems.
4.7 PC SOFTWARE.
(a) Notwithstanding Section 3.2(b), Customer will, at Customer's
expense, provide and be responsible for all Equipment required for
Customer to use the PC Software ("PC Software Equipment").
(b) Without EDS' prior written consent, Customer will not (i) install
any System other than the PC Software on the applicable PC Software
Equipment; (ii) sell, assign, lease, transfer, or disclose to any
third party the PC Software, (iii) use the PC Software for the
commercial benefit of any third party; (iv) copy or reproduce the PC
Software; or (v) reverse assemble, reverse compile, or otherwise
recreate the PC Software. Customer may transfer its use of the PC
Software to a backup or replacement system to the PC Software
Equipment on a temporary or permanent basis provided Customer gives
prior written notice to EDS and discontinues use of the PC Software
on the applicable PC Software Equipment.
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ARTICLE V - PAYMENTS TO EDS
5.1 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 Conversion Services, the applicable conversion charge listed in
Section 2 of Schedule C.
(c) For Optional Services, the monthly charges listed in Schedule B.
(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.
5.2 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 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.
5.3 TIME OF PAYMENT. All charges under this Agreement will be due and payable
within ten days of invoice date. Any charges not paid within thirty days
of invoice date will bear interest until paid at a rate equal to the
lesser of 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.
5.4 ANNUAL ADJUSTMENT TO CHARGES. The charges set forth in Section 5.1 will be
subject to the adjustments described in Schedule E.
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 in accordance with Section 6.3. However, upon the request
of any appropriate federal or state regulatory authority with jurisdiction
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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 be 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. If
Customer is required to disclose any proprietary information of EDS in
accordance with any such legal, accounting, or regulatory requirements,
then Customer will promptly notify EDS of such requirement and will
cooperate with EDS (at EDS' expense) in EDS' efforts, if any, to avoid or
limit such disclosure (including, without limitation, obtaining an
injunction or an appropriate redaction of the proprietary information in
question). 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' will perform the following regarding
contingency planning:
(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 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: (i) Federal Deposit Insurance
Corporation Bank Letter BL-22-89 dated July 14, 1989; (ii) Federal
Reserve System Supervision and Regulation Number SR 89-16 dated
August 1, 1989; and (iii) Office of the Comptroller of the Currency
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Banking Circular Number BC177 dated July 12, 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 allocation 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 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 days select one arbitrator, and those two arbitrators will within
thirty days thereafter select a third arbitrator. If the two arbitrators
are unable to agree on a third arbitrator within thirty days, the AAA will
within thirty 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
proceedings, 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.
7.2 TERMINATION DUE TO ACQUISITION. If fifty percent 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, then
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 days after receiving written notice specifying such
default, then EDS may, by giving Customer at least thirty 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
days after receiving written notice specifying the default or, for those
defaults which cannot reasonably be cured within ninety 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 days prior written notice
thereof, terminate this Agreement as of a date specified in such notice.
7.5 TERMINATION FOR INSOLVENCY. 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 prior written notice
thereof to the non-terminating party, terminate this Agreement as of a
date specified in such notice.
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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 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 V 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 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 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 calendar months immediately
preceding the calendar month in which notice of termination was
given, and multiplying that number by eighty percent. This is
expressed mathematically as follows:
(Number of months remaining in term) x (average monthly charge for
Services during the twelve months preceding notice of termination) x
0.80
If this Agreement has been in effect less than twelve 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
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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 5.1 of this Agreement for
the lesser of the months that have elapsed since the Operational Date or
the three 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
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. EDS will provide the Services in a professional and workmanlike
manner. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8.2, 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 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.
10
8.5 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. Neither party may
assign this Agreement unless it obtains the prior written consent of the
other party (except that EDS will have the right to perform the Services
itself and through various of its indirect, wholly-owned, United
States-based subsidiaries and to subcontract to unaffiliated third parties
portions of the Services, so long as EDS remains responsible for the
obligations performed by any of its subsidiaries and subcontractors to the
same extent as if such obligations were performed by EDS employees), which
consent will not be unreasonably withheld. The following transactions
relating to either party will not require approval of the other party
under this Section: any merger (including without limitation a
reincorporation merger), consolidation, reorganization, stock exchange,
sale of stock or substantially all of the assets, or other similar or
related transaction in which such party is the surviving entity or, if
such party is not the surviving entity, the surviving entity continues to
conduct the business conducted by such party prior to consummation of the
transaction.
9.2 HIRING OF EMPLOYEES. During the term of this Agreement and for a period of
twelve 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 months by the other party, if the
person was involved in providing or receiving Services.
9.3 NOTICES. Any notice under this Agreement will be deemed to be given when
(i) delivered by hand or when mailed by registered United States mail,
return receipt requested, and (ii) addressed to the recipient party at its
address set forth in the first paragraph of this Agreement and to the
attention of its President, in the case of Customer, or to the attention
of President of Community Banking Services, 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 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 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.
11
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 excluding 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 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 and warrants that (a) this Agreement has been duly authorized;
(b) such execution does not, and will not, cause a breach by Customer of
any other contract, agreement, or understanding to which Customer is a
party; and (c) this Agreement 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.
IN WITNESS WHEREOF, EDS and Customer each have caused this Agreement
to be signed and delivered by its duly authorized representative.
Customer: Accepted by:
FIDELITY FEDERAL BANK ELECTRONIC DATA SYSTEMS CORPORATION
By: /S/ JAMES E. STUTZ By: /S/ PAUL W. DUCKHAM
- ------------------------------------- -------------------------------------
Authorized Signature Authorized Signature
JAMES E. STUTZ, PAUL W. DUCKHAM,
President and Chief Operating Officer President, MISER Division
- ------------------------------------- -------------------------------------
Type or Print Name and Title Type or Print Name and Title
December 3, 1999 December 9, 1999
- ------------------------------------- -------------------------------------
Date Date
12
EDS INFORMATION SERVICES L.L.C.
By: /S/ RAYMOND R. MATURI
-------------------------------------
Authorized Signature
RAYMOND R. MATURI.
Division President
-------------------------------------
Type or Print Name and Title
December 15, 1999
-------------------------------------
Date
13
SCHEDULE A
BASIC SERVICES
EDS will provide Customer the following Basic Services:
I. DATA PROCESSING SOFTWARE SYSTEM ACCESS:
MISER Base Software System includes:
* Demand Deposit Accounts * Relationship Pricing
* Savings/Club Accounts * Combined Statements
* Retirement Accounts * Sweep Accounts
* Mortgage Loans (Investor) * NOW Accounts
* Mortgage Loans (Non-Investor) * ACH Returns
* Money Market Accounts * Automatic Account Transfers
* Line of Credit * Combined Interest Checks
* Student Loans * Mid Year IRA Statements
* General Ledger * Escrow Analysis
* Certificates of Deposit * Escrow Statements
* Lease Security * LIP Billing
* ACH/Transfers * Home Equity Loans
* Installment Loans * Coupon Production
* Passbook Loans * Credit Bureau Reporting (Max 2)
* Other Loans (Share) * General Ledger Auto-Posting
* IOLTA (Lawyer) * AM/PM Processing
* Relationship CIF * Documentation
* Disaster Recovery (Host) * Training Bank File
* Optical Disk Download * Employee Account Security
* Output Management System * Tape Generation
* Overdraft Protection
MISER Base Software System also includes the following ancillary
applications (Note: Access Fees and Volume Charges as defined in Schedule
B or Schedule C may apply):
* Commercial Loans * Investor Reporting
* Dealer Processing * Per Diem
* ECHO (Shadow Accounting) * Billing Records
* Safe Deposit Box * Notepad Storage
* Online ATM Processing * Report Writer Access
* Data Mart * Data Warehouse
* Accounts Payable
A-1
II. STANDARD REPORTS:
EDS shall make available to Customer those standard reports listed in the
Data Center's published MISER Reports that are produced by those Data
Processing Software System application systems used by Customer. All
reports will be transmitted to a remote print facility at Customer's
location, unless otherwise requested by Customer. Customer is responsible
for the operation and cost of the remote print facility. Any expense for
additional copies, custom pre-printed forms, mailing and handling service
shall be paid by Customer. The design and format of any forms to be used
with the Data Processing Software System shall be approved by EDS. All
reports produced only upon request of Customer as well as special requests
to produce standard reports outside such report's normal production
frequency (which reports are denoted as "Requested Programs and
Frequencies") shall be subject to the Special Report Charges specified in
Schedule "C."
III. Hours of Operation and Schedule of Services
1. ON-LINE PROCESSING HOURS OF OPERATION
SCHEDULED AVAILABILITY
Monday through Friday 6:45 A.M. - 8:00 P.M. (See Note 1)
Saturday 8:00 A.M. - 2:00 P.M.
Sunday 8:00 A.M. - 2:00 P.M.
Note 1: Five (5) day processing with Saturday carry-over
EDS' Data Center will observe New Year's Day, President's Day, Memorial
Day, Independence Day, Labor Day, Veterans Day, Thanksgiving, and
Christmas as holidays. On-line service will not be available to Customer
on those days, except as mutually agreed upon in advance and for a fee to
be agreed upon in advance.
2. OFF-LINE PROCESSING AND REPORTING
2.1 DAILY
Regular daily reports and OMS 8:00 A.M. Following business day
o Includes all scheduled reports
and downloads for the core
applications (deposits, loans,
and general ledger)
2.2 MONTHLY
Interest checks and commercial Noon on the 1st business
checking account statements day following end of month
All other monthly reports Noon on the 3rd business
day following end of month
2.3 QUARTERLY
All other quarterly reports Noon on the 3rd business
day following end of quarter
2.4 ANNUAL
All IRS-required forms Scheduled as mutually agreed
to permit federal regulatory
compliance
All other annual reports Noon on the 4th business day
following end of year
3. BATCH TRANSACTION INPUT FROM CUSTOMER
3.1 Daily No later than 4:00 p.m. same
day
A-2
SCHEDULE B
OPTIONAL SERVICES
Customer will have the option to implement the following option products
throughout the term of this Agreement. Should Customer elect to utilize any of
the optional products EDS will assess the surcharge identified below.
COMPONENT MONTHLY ONE-TIME COMMENT
- ------------------------------------ ------------- -------------- --------------------------------
LOAN SUPPORT
- ------------
MORTGAGE LOANS Access Fee $ 8,000.00 One-Time Fee for
Included In On-Site Training
Basic Service
COMMERCIAL LOANS $ 200.00 $ 3,000.00 One-Time Fee for
On-Site Training
COMMERCIAL LOAN WITH $ 300.00 $ 5,000.00 One-Time Fee for
MULTIPLE PARTICIPATION On-SiteTraining
COMMERCIAL CONSTRUCTION LOANS $ 2,500.00 $ 3,000.00 One-Time Fee for
On-Site Training
INVESTOR REPORTING $ 750.00 $ 4,000.00 One-Time Fee for
On-Site Training
BILLING RECORDS & PER DIEM Access Fee $ 2,500.00 One-Time Fee for
Included In On-Site Training
Basic Service
DEALER LOAN SERVICING Access Fee $ 2,000.00 One-Time Fee for
Included In On-Site Training
Basic Service
ECHO (SHADOW ACCOUNTING) Access Fee $ 2,000.00 One-Time Fee for
Included In On-Site Training
Basic Service
ONLINE COLLECTIONS $300.00 $ 2,500.00 One-Time Fee for
On-Site Training
LETTER WRITER $ 50.00 $ 1,500.00 Plus .025 per letter generated
and .10 per letter Stored Billed
Monthly; One-time Fee for
On-Site Training
NOTEPAD STORAGE Access Fee Not Applicable Plus $0.01 Per NotePad Record
Included In
Basic Service
FINANCIAL APPLICATIONS
- ----------------------
ASSET/LIABILITY MANAGEMENT
> License Fee (Multi-User Version) Not Applicable $ 27,700.00 HNC Financial Solutions
> Installation/Training Fee Not Applicable $ 5,000.00
> Maintenance Fee $ 475.00 Not Applicable Plus File Transfer Fee
INVESTMENT MANAGEMENT
> License Fee (Multi-User Version) Not Applicable $ 12,500.00 Wall Street Consulting Group
> Installation/Training Fee Not Applicable $ 7,000.00
> Maintenance Fee $ 225.00 Not Applicable Plus File Transfer Fee
FIXED ASSETS
> License Fee (Multi-User Version) Not Applicable $ 3,650.00 HNC Financial Solutions
> Installation/Training Fee Not Applicable $ 2,000.00
> Maintenance Fee $ 75.00 Not Applicable Plus File Transfer Fee
B-1
SCHEDULE C
SERVICE CHARGES
Section 1.a. Charges for Basic Services.
- ------------ ---------------------------
In consideration for the services described in Schedule A, Customer will pay EDS
a monthly data processing service charge based on the following table.
COMPONENT MONTHLY ONE-TIME COMMENT
- ------------------------------------ ------------- -------------- --------------------------------
CORE PROCESSING FEES
- --------------------
ACCOUNT PROCESSING FEE
STANDARD:
Open Active Accounts * $ 0.50 Not Applicable Per Account Per Month
PREMIUM - COMMERCIAL LOANS &
INVESTOR MORTGAGES:
Open Active Accounts * $ 0.50 Not Applicable Per Account Per Month
STANDARD & PREMIUM:
Closed Accounts * $ 0.05 Not Applicable Per Account Per Month
* FOR THE PURPOSES OF THIS SCHEDULE ACCOUNT(S) SHALL BE DEFINED AS THE TOTAL
DEPOSITS, TOTAL LOANS, AND COLLECTIONS RECORDS PROCESSED BY EDS FOR THE
CUSTOMER AS REPORTED IN EDS MSR615 PROGRAM (DATA CENTER WORKSHEET FOR
ACCOUNT VOLUME ANALYSIS.)
* DURING THE FIRST TWENTY-FOUR (24) MONTHS OF THE TERM OF THIS AGREEMENT, EDS
WILL WAIVE ACCOUNT PROCESSING FEES FOR UP TO THE FIRST 15,000 MORTGAGE LOAN
ACCOUNTS.
ACCOUNTS PAYABLE
----------------
> Monthly Fee $ 300.00 $ 2,000.00 One-Time Fee for On-Site Training
> Vendor Fee $ 0.35 Not Applicable Per Vendor Billed Monthly not
to exceed $1,200.00
> Transaction Fee $ 0.02 Not Applicable Per Transaction Billed Monthly
SAFE DEPOSIT BOX Access Fee $ 1,500.00 EDS hereby agrees to waive the $500.00
Included In MISER Safe Deposit Box Monthly Access Fee
Basic Service and $20.00 (per branch) Monthly Branch
Access Fee; One-Time Fee for On-Site Training
ONLINE ATM $ 1,000.00 Included One-Time Fee for On-Site Training
included in Charge for Basic Conversion
Services, Schedule C, Section 2.a
ADHOC REPORTING
- ---------------
MISER GUI REPORT WRITER & DATA EXTRACT
Application Access Waived $ 5,000.00 EDS hereby agrees to waive the $750.00
MISER Report Writer and Data Extract Monthly
Access Fee; One-Time Fee for On-Site Training
C-1
VARIABLE CHARGES:
> URSA Waived $ 1,000.00 Per URSA Client Terminal
> prime pass accounts accessed $ 0.0030 Not Applicable Billed Monthly
> prime pass accounts processed $ 0.0041 Not Applicable Billed Monthly
> off-prime pass accounts accessed $ 0.0010 Not Applicable Billed Monthly
> off-prime pass accounts processed $ 0.0025 Not Applicable Billed Monthly
MISCELLANEOUS FEES
- ------------------
DOCUMENTATION:
Hard Copy No Charge No Charge Initial Hard Copy Set; Additional Sets $250.00
CD-ROM No Charge No Charge Initial CD-ROM; Additional CD's $50.00
FILE TRANSFER:
External File Reporting
(Magnetic Tape) $ 40.00 Not Applicable Fee Waived for the first 10 Files on a Monthly
Basis; Per File Plus Tape Cost
External File Reporting
(Transmissions and Downloads) $ 30.00 Not Applicable Fee Waived for the first 10 Files on a Monthly
Basis; Per File
SCHEDULE CHANGES:
Ad Hoc
(Processed by EDS Production Control) $ 25.00 Not Applicable Per Change WAIVED DURING FIRST 6 MONTHS OF THE
TERM OF THIS AGREEMENT
Permanent
(Processed by EDS Production Control) $ 15.00 Not Applicable Per change WAIVED DURING FIRST 6 MONTHS OF THE
TERM OF THIS AGREEMENT
CARD OPTION CHANGES:
Ad Hoc
(Processed by EDS Production Control) $ 25.00 Not Applicable Per Change WAIVED DURING FIRST 6 MONTHS OF THE
TERM OF THIS AGREEMENT
Permanent
(Processed by EDS Production Control) $ 25.00 Not Applicable Per change WAIVED DURING FIRST 6 MONTHS OF THE
TERM OF THIS AGREEMENT
PARAMETER CHANGES:
Field Changes
(Processed by EDS Production Control) $ 15.00 Not Applicable Per Field Per Setup/Change WAIVED DURING FIRST 6
MONTHS OF THE TERM OF THIS AGREEMENT
Account/Service Charge Types
(Processed by EDS Production Control) $ 75.00 Not Applicable Per Type Per Setup/Change WAIVED DURING FIRST 6
MONTHS OF THE TERM OF THIS AGREEMENT
C-2
EDS contemplates offering Customer its MISER DATAMART Application, said
application to be released to EDS' service bureau customers in the first quarter
of 2000.
COMPONENT MONTHLY ONE-TIME COMMENT
- ------------------------------------ ------------- -------------- --------------------------------
DATA MART & DATA WAREHOUSE
- --------------------------
> Data Mart Initial License Fee Not Applicable Waived(1) Includes:
New Name Business Discount Data Replication
Net Data Mart Initial License Fee > Daily, once a day, on a NT-Server at the SMC
[dedicated server]
> Data Mart Server Package Not Applicable $ 95,000.00 Reporting Products
New Name Business Discount $ 41,000.00(2) > MISER Datamart Report Client Version 1.0 -
Net Data Mart Server Package ------------ Crystal Reports
$ 54,000.00 > MISER Executive Reporting Module Version 1.0 - Sagent
============ (single source, single target - 20 user licenses)
> Monthly Usage Fee
Includes: Data Replication daily Monthly Fee estimate assumes 200,000 accounts
on a NT-Server at EDS' Data Center $ 5,000.00 Not Applicable (as defined in Schedule C, Section 1a of this
plus maintenance and server Agreement) at $0.025 per account.
administration.
> Installation and Training Not Applicable $ 6,500.00 Four (4) Days On-Site
> Report Product Training Not Applicable $ 1,200.00 PER MAN-DAY
> Consulting Services Not Applicable $ 2,500.00 PER MAN-DAY
> Re-Clone Database (Client Requeted) Not Applicable $ 0.02 Per record; Minimum $2,000.00
C-3
> Other Considerations:
> (1) In consideration of Customer licensing a minimum 400 seats of the SDI
ZEUS Teller and Platform System EDS hereby agrees to waive the $40,000.00
Data Mart Initial License Fee. Should Customer elect to license fewer SDI
ZEUS Teller and Platform Systems then EDS reserves the right to reinstate a
portion of the Data Mart Initial License Fee.
> (2) In consideration of Customer licensing a minimum 400 seats of the SDI
ZEUS Teller and Platform System EDS hereby agrees to provides a discount of
$31,000.00 against the purchase of a Data Mart Server Package for
$95,000.00. Should Customer elect to license fewer SDI ZEUS Teller and
Platform Systems then EDS reserves the right to reduce the discount against
the Data Mart Server Package.
> Monthly fees will fluctuate based on number of accounts; the variable
portion of the monthly fee is $0.025 per account.
> Additional installation and consulting services available at $ 2,500.00 per
man-day.
> It may be necessary to upgrade the server as technology changes. In the
event EDS determines that a server upgrade is warranted, EDS and Customer
will mutually agree as to the necessity of the upgrade and Customer will
pay a mutually agreeable server upgrade fee.
> Hardware and Software Requirements:
Software: NT 4.0, SQL Server 7.0 (for Datamart) ; Crystal
Reports 6.0 (for Datamart Report Client only)
Hardware: Recommended configuration: Dual Intel 450MHZ Pentium II
Processors, 512MB ECC SDRAM SIMM, 54GB* 10000RPM Ultra/Wide
Disk Configured as RAID5 hardware array, 4 mm DAT Drive,
10/100 TX LAN Controller, SCSI Ultra/Wide Controller capable
for RAID5.
* May vary based on storage needs.
> Pricing in this Schedule B is subject to further review by EDS of the
specific configuration for Customer and may be subject to modification.
Section 1.b. Annual Minimum Charges for Basic Services.
- ------------ ------------------------------------------
EDS' Basic Services are subject to the annual minimum charges in the table in
this Section 1.b during the term of this Agreement. All monthly fees referenced
in Schedule B and Schedule C of this Agreement are to be included in the
calculation of Annual Minimum Charges for Basic Services.
COMPONENT FEES AMOUNT
-------------- ------
ANNUAL MINIMUM BASIC SERVICE CHARGES
Year 1-5 of the term of this Agreement $1,000,080.00
On each anniversary of the Operational Date, EDS will calculate the total
monthly charges referenced in Schedule B and Schedule C of this Agreement paid
to EDS by Customer for the immediately preceding 12 months (the "Total
Charges"). In the event the Total Charges for the previous 12 months is less
than the Annual Minimum Charges set forth in the table above in this Section
1.b, EDS will invoice Customer the difference between the Annual Minimum Charges
and the Total Charges, such invoice to be paid by Customer within 10 days of the
date of invoice. Notwithstanding anything to the contrary in this Agreement, the
parties agree that the Annual Minimum Charges set forth in the table above in
this Section 1.b will not be subject to the annual adjustment described in
Schedule E.
C-4
Section 1.c. Staffing
- --------------------------
RELATIONSHIP MANAGER. EDS shall assign a relationship manager to Customer (the
"Relationship Manager"). The Relationship Manager will be located at a regional
EDS facility and will be responsible for management of EDS' and the Customer's
overall business relationship. The Relationship Manager will meet with the
Customer at least monthly to discuss issues related to the business
relationship. EDS will provide the Relationship Manager at no additional charge
to the Customer.
PROGRAMMER. Effective the Operational Date, EDS shall use commercially
reasonable efforts to hire and assign a full-time EDS programmer dedicated to
Customer's account (the "Programmer"). The Programmer will be located at
Customer's site for the term of this Agreement. The Programmer will provide on a
full-time basis the Special Programming Services contemplated in Section 1.d of
this Schedule C. Should EDS be unable to assign a Programmer by the Operational
Date as contemplated above, then Customer may, at its option, select from one of
the following alternatives for each month in which a Programmer is not assigned
by EDS: (i) receive up to one hundred hours of Special Programming Services
performed by off-site, non-dedicated EDS programmers, or (ii) receive a credit
for such month in the amount of $3,000.00. The immediately preceding
alternatives will be pro-rated for partial months. Should Customer select option
(i), above, EDS shall have the right to select the programmer(s) to perform the
Special Programming Services.
Section 1.d. Special Programming Services
- ----------------------------------------------
EDS shall provide to Customer special programming services (including
development of special programs and interfaces, modification of existing
programs, conversion services, and retrofitting of custom programs and patches
in to System releases) ("Special Programming Services") to the extent that they
can be provided by the Programmer referenced in Section 1.c above working on a
full-time basis. Special Programming Services deliverables shall be scheduled as
mutually agreed by EDS and Customer, provided that EDS will exercise
commercially reasonably efforts to provide acceptable turnaround time on
projects requested by the Customer. Time spent by EDS' programmers to (i)
correct defects to the EDS System (a "defect" shall mean the EDS System does not
perform in accordance to specifications as generally provided to EDS' customer
base) and (ii) perform modifications required by Federal regulatory agencies,
subject to the provisions of Section 3.4 of the Agreement, will not be applied
against the Special Programming Services hours that may be provided by EDS with
off-site EDS programming resources in the event Customer exercises alternative
(i) set forth in Section 1.c above.
CHARGES FOR SPECIAL SERVICES. Should Customer desire programming services in
excess of those contemplated in the Special Programming Services then EDS shall
provide to Customer a cost and time estimate to complete the desired capability.
Such Additional Services shall be billed at a rate of $125.00 per hour. EDS will
proceed with the Customer's request for such Additional Services upon receipt of
Customer's written approval of EDS' time and cost estimate.
EDS reserves the right to decline Customer requests for Special Programming or
Additional Services if the deliverable would adversely affect the System or if
EDS resources are not reasonably available to accomplish the request.
C-5
Section 1.e. Deconversion Services
- ---------------------------------------
As set forth in Section 7.6 of the Agreement, Customer will pay EDS all costs
reasonably incurred by EDS in connection with such deconversion assistance and
resources utilized to prepare any test or deconversion tapes. Without limiting
the provisions of Section 7.6 of the Agreement, all deconversion assistance will
be provided at EDS' then standard charges; provided, however, that the following
deconversion assistance items shall be fixed at the rates listed below in this
Section 1.f, subject only to the annual price adjustments set forth in Schedule
E of this Agreement.
o Deconversion Tapes $ 500.00 per tape
(same pricing for test tapes
or final tapes)
o Employee Research Time $ 100.00 per hour
o Master File Layouts
Included with tape charge but can
charge excessive man hours @ $ 125.00 per hour
o Telecom Charge (rebill pass through actual
charge plus 5% handling charge)
o Partial Month On-line Charges
(Average monthly invoice divided by number of days used). Example:
$42,000.00 average customer invoice divided by 21 days = $2,000.00
per day. Customer uses 10 days. $2,000.00 x 10 = $20,000.00. Charges
will vary depending on average monthly invoice, number of billing
days in monthly cycle, days used after conversion.
Section 1.f. Disaster Recovery Fees
- ----------------------------------------
In the event of an actual disaster, Customer shall pay Disaster Recovery fees
and actual costs EDS incurs, including, but not limited to: travel and
travel-related expenses of EDS' staff; telephone expenses; data communications
expenses; other than out of pocket expenses related to EDS' operations other
than Data Processing; cost of any special equipment required by Customer in
addition to the equipment configuration at EDS' disaster recovery hot site.
a. While EDS is responsible for the cost of testing EDS' Data Center
operations at the disaster recovery hotsite, Customer is responsible for
any incremental testing fees incurred as result of Customer's testing
requirements. Customer will not be financially responsible for EDS'
internal Data Center disaster recovery testing conducted on an annual
basis.
Section 1.g History Retention
- -----------------------------------
The fees set forth herein are based upon the closed account, monetary and
non-monetary transaction history retention limits set forth below. Additional
history retention requested by Customer may be subject to additional charge at
EDS' discretion.
Checking 3 months (rolling)
Consumer Loans current and previous year
General Ledger current and previous year
Savings current and previous 2 years
Other applications current and previous year
Additional history retention will be available on request by Customer for an
additional fee.
Section 1.h. Optional PC Based Applications
- ------------------------------------------------
Customer intends to use the personal computer based applications listed below
(the "PC Applications"). Customer agrees to enter into separate software license
and software maintenance agreements with EDS or EDS' designated third party
vendors in order to obtain the rights to use the below listed PC Applications.
C-6
o SDI ZEUS Client/Server Front-End with TCP/IP Connection To EDS' Host
Computer
Section 2.a Charge For Basic Conversion Services
- ------------------------------------------------------
Customer will pay EDS for the following one-time charges associated with
conversion and training services performed during the Conversion period.
CONVERSION SERVICES ONE-TIME COMMENT
- ------------------------------------ -------------- --------------------------
MISER SYSTEM SETUP, IMPLEMENTATION,
& CONVERSION:
Institution Setup $ 75,000.00 Plus travel and living
expenses for EDS' employee
while on Customer site.
Conversion $ 200,000.00 Plus travel and living
expenses for EDS' employee
while on Customer site.
MISER SYSTEM TRAINING FEES:
MISER Introduction $ 63,000.00 Plus travel and living
expenses for EDS' employee
while on Customer site.
The MISER System Training Fees set forth in the table above will be in payment
of EDS' provision to specified Customer personnel of the following training
classes:
Class Number of Classes
-------------------------------------------------------------
Introduction to MISER 1
Relationship CIF 3
Branch Operations 3
Deposit Servicing 3
Security 1
Individual Retirement Account Servicing 1
Consumer Loans 1
Line of Credit Account Servicing 1
General Ledger 1
Back Office (ACH/Inclearings/Transfers) 1
Command and Edit (CANDE) System 1
TB Entry 1
Backoffice Branch Operations 1
Nightly Production 1
MISER Administrator 1
ATM 1
The Conversion Services, as defined in Article III, Section 3.1(c) of the
Agreement, are based upon EDS' good faith estimate derived from information
presented to EDS by Customer. If, during the course of the Conversion Services
effort, it is determined that (a) Customer desires EDS to perform additional
services not included in Company's Conversion Services described herein, or (b)
the Conversion Services assistance effort is substantially greater than
Company's good faith estimate, then EDS reserves the right to charge Customer
additional Conversion Service Charges as mutually agreed by EDS and Customer.
C-7
Section 2.b Charge for Custom Interface and Development Conversion Services
- --------------------------------------------------------------------------------
If it is determined that Customer desires EDS to perform custom interface and
other development services not contemplated in the Basic Conversion Services
then EDS will charge Customer for such services at a rate of $125.00 per-hour
per resource. Notwithstanding the foregoing, EDS will waive such fees for Custom
Interface and Development Services for up to the first one hundred (100)
man-hours.
C-8
Section 3. Schedule of One-Time Charges.
- -----------------------------------------------
Basic Services Charges (as defined in Exhibit C, Sections 1.a, 1.b, and 1.c)
o All charges will be payable on receipt of EDS' invoice.
Special Programming Services (as defined in Exhibit C, Section 1.d)
o All charges will be payable on receipt of EDS' invoice.
Deconversion, Disaster Recovery, and History Retention (as defined in Exhibit C,
Sections 1.e, 1.f and 1.g)
o All charges will be payable on receipt of EDS' invoice.
Conversion Services (as defined in Exhibit C, Section 2a)
o $100,000.00 Upon execution of this Agreement
o $150,000.00 Upon January 1, 2000
o $ 88,000.00 Upon Conversion
Additional Charges (Including all remaining charges plus travel and living
related expenses)
o All charges will be payable on receipt of EDS' invoice.
C-9
SCHEDULE D
CUSTOMER SYSTEMS
SYSTEM VENDOR
------ ------
EDS will provide customer a detailed quote of the cost to create and run an
interface to the Customer System listed above.
D-1
SCHEDULE E
ANNUAL ADJUSTMENT TO CHARGES
1. ADJUSTMENT TO CHARGES. The parties acknowledge and agree to use the
Employment Cost Index for Total Compensation (not seasonally adjusted),
Private Industry Workers, White-collar occupations excluding sales,
June 1989 = 100 (the "ECI"), as the basis for annual adjustments to all
charges to be paid by Customer to EDS under the Agreement (the
"Adjustable Charges"). The ECI is published by the Bureau of Labor
Statistics (the "BLS") of the U.S. Department of Labor. For purposes of
this Schedule E, the most recently published ECI as of any anniversary
of the Effective Date is the "ECI Current Index", and the "ECI Base
Index" is the ECI Current Index from the prior anniversary of the
Effective Date (or, for the first anniversary, the ECI most recently
published as of the Effective Date). If, on any anniversary of the
Effective Date, the ECI Current Index is higher than the ECI Base
Index, then, effective as of such anniversary, an adjustment to the
Adjustable Charges will be made by increasing the Adjustable Charges by
the percentage that the ECI Current Index increased from the ECI Base
Index. In calculating the percentage increase, the parties agree to
round to one decimal place. In no event will adjustments pursuant to
this Exhibit A exceed five percent (5%) on an annual basis during the
term of the Agreement. If, on any anniversary of the Effective Date,
the ECI Current Index is lower than the ECI Base Index, no adjustment
to the Adjustable Charges will be made, and the ECI Base Index shall be
carried over to the next anniversary so that no adjustment to the
Adjustable Charges will be made on the next anniversary except to the
extent that the ECI Current Index on that next anniversary exceeds the
carried over ECI Base Index.. If the period from the ECI Base Index to
the ECI Current Index is other than 12 months, an adjustment to a full
year will be made in the manner indicated in the example set forth in
Section 3 of this Schedule E. If an adjustment is not made on an
anniversary date for any reason, then the ECI Base Index for the
following anniversary date will be the same as the ECI Base Index for
the anniversary date on which no adjustment was made, as indicated in
the note to the third example set forth in Section 3 of this Schedule
E. The ECI is published quarterly at the end of the month following the
quarter measured, and the most recently published ECI as of the
Effective Date was the ECI published on or around October 31, 1999 for
the quarter ending September 30, 1999. The parties acknowledge and
agree that EDS will adjust the Adjustable Charges and will advise
Customer of such adjustment in writing so that the new charges will
amend this Agreement and become effective on the applicable anniversary
of the Effective Date. If no adjustment is made on an anniversary date
for any reason, EDS will advise Customer in writing of such fact.
2. ADJUSTMENT TO CHARGES EXAMPLE. The following is an example of the
adjustments described in Section 1 of this Schedule E. The specific
numbers used in the example are for illustration purposes only and are
not necessarily reflective of an actual calculation hereunder or the
actual ECI.
Annual Adjustment on First Anniversary Date:
Example Charge under this Agreement $1,500.00
ECI Current Index 136.0
ECI Base Index (as of Effective Date) 129.9
Percentage Change 36.0 - 129.9) / 129.9 = 4.7%
Charge Increased by (1+ Percentage Change) $1,500.00 * (1 + 4.7%)
Equals Adjusted Charge $1,570.50
E-1
Annual Adjustment on Second Anniversary Date:
Adjusted Charge as of First Anniversary Date $1,570.50
ECI Current Index 143.2
ECI Base Index (as of First Anniversary Date) 136.0
Percentage Change (143.2 - 136.0) / 136.0 = 5.3%
Charge Increased by
(1+ Maximum Annual Percentage Change) $1,570.50 * (1 + 5.0%)
Equals Adjusted Charge $1,649.03
Annual Adjustment on Third Anniversary Date:
Adjusted Charge as of Second Anniversary Date $1,649.03
ECI Current Index 140.9
ECI Base Index (as of Second Anniversary Date) 143.2
Percentage Change No adjustment is made
Charge Increased by (1+ Percentage Change) $1,649.03 * (1 + 0.0%)
Equals Adjusted Charge* $1,649.03
Annual Adjustment on Fourth Anniversary Date:
Adjusted Charge as of Third Anniversary Date $1,649.03
ECI Current Index 145.9
ECI Base Index (as of Third Anniversary Date) 143.2
Percentage Change (145.9 - 143.2) / 143.2 = 1.9%
Charge Increased by (1+ Percentage Change) $1,649.03 * (1 + 1.9%)
Equals Adjusted Charge* $1,680.12
* The ECI Base Index for the fourth anniversary date would be 143.2.
3. CHANGES TO INDEX. In the event that the BLS should stop publishing the
ECI or should substantially change the content, format or calculation
methodology of the ECI, the parties will substitute another comparable
measure published by a mutually agreeable source, except as noted
below. If the change is to redefine the base period for the ECI from
one period to some other period, the parties will continue to use the
index but will use the new base period figures for all future
adjustments. If the change is to the name of the ECI, the new name will
be used instead of the old name so long as the numbers previously
published for the index have not changed. If the change is to the
publication schedule, the parties may agree in writing to use a
different publication schedule and to adjust any partial year to a full
year, if needed. The adjustment to convert a partial year to a full
year is shown below.
ECI Current Index as of July 19XX 151.0
ECI Base Index as of June 19XX-1 145.2
Percentage Change
(rounded to 3 decimals) (151.0 - 145.2) / 145.2 = 3.994%
Percent Times 12 Divided
# of Months in Period 3.994% * 12 / 13
Equals Percentage Change (rounded to 1 decimal)* 3.7%
* This calculation method will be used instead of the Percentage
Change calculation shown in Section 2 of this Schedule E if the
period between the ECI Base Index and the ECI Current Index is
other than 12 months.
E-2
SCHEDULE F
PERFORMANCE STANDARDS
1. PERFORMANCE STANDARDS: EDS agrees that the Services will be provided in
accordance with the following Performance Standards.
SUBSTANDARD CRITICAL
PERFORMANCE PERFORMANCE PERFORMANCE
STANDARD THRESHOLD THRESHOLD COMMENT
- ----------------- ----------- ------------ -----------------------------------
1.a MISER System <99% <98% Monthly on line availability
Monthly On-line measures the time the Hardware,
Availability Software and Network components
of the MISER System must be
available for Customer processing
during the time specified in
Schedule A, Section III,
Paragraph 1. This measurement
represents the time MISER is
actually useable as a ratio to
the time period it was expected
to be useable each calendar
month. It will be calculated in
minutes by subtracting from the
total time the service was
scheduled to be available during
a given month, the total time
the service was unavailable
during that same month and
dividing the result by the
scheduled availability as
specified in Schedule A, Section
III, On-line Hours of Operation.
1.b MISER System 2 Seconds 4 Seconds Measures, on a monthly basis,
On-line the time elapsed between the
Response Time receipt of a transaction request
at MISER's main operating router
and the receipt of the last
character in answer to that
request (a function of performance)
at FFB's main operating reouter.
It will be calculated in
milliseconds by subtracting from
the total time consumed by a given
transaction the total time
allocated to that transaction, and
dividing by the scheduled response
time.
1.c MISER System 98.5% 96% Reports and Output Files must be
Reporting and made available to FFB within the
Output File agreed upon daily, weekly, monthly,
Availability quarterly and annual delivery
schedules. Performance under this
standard shall be measured monthly
by dividing the number of scheduled
reports and output files not
received by FFB by the scheduled
time by the total number of
scheduled reports and output files
expected by FFB as specified in
Schedule A, Section III, Offline
Processing and Reporting.
2. PERFORMANCE STANDARD CREDIT: Customer understands and agrees that EDS
will not achieve the above mentioned performance standard goals one
hundred percent (100%) of the time, provided however, if EDS'
performance does not equal or exceed the Substandard Performance
Threshold defined above for a given month, then Customer shall be
entitled to a Performance Standard Credits as specified below:
F-1
(a) If EDS fails to meet the Substandard Performance Threshold
specified for the MISER System On-line Availability, then
Customer shall be entitled to a credit on the Account
Processing Fees defined in Schedule C, Section 1.a for each
month in which said Substandard Performance Threshold is not
met based on the following table:
CREDIT ON THE
ACCOUNT PROCESSING
FEES FOR OPEN
AGGREGATE ONLINE AVAILABILITY ACTIVE ACCOUNTS
* If Aggregate Online Availability is less 1%
than 99% and greater than or equal to 98%
* If Aggregate Online Availability is less 3%
than 98% and greater than or equal to 97%
* If Aggregate Online Availability is less 5%
than 97%
Additionally, if EDS fails to achieve 97% Aggregate Online
Availability during two months in any twelve (12) month
period, Customer shall be entitled to a ten percent (10%)
credit, in lieu of the five percent (5%) defined above, on the
Account Processing Fees for Open Active Accounts defined in
Schedule C, Section 1.a for the second month.
(b) If EDS fails to meet Substandard Performance Threshold
specified for the MISER System On-line Response Time, then
Customer shall be entitled to a credit on the Account
Processing Fees defined in Schedule C, Section 1.a for each
month in which said Substandard Performance Threshold is not
met based on the following table:
ON-LINE SYSTEM RESPONSE TIME CREDIT ON THE ACCOUNT
PROCESSING FEES FOR
OPEN ACTIVE ACCOUNTS
* If Online System Response Time is more than 1%
2 seconds for 2% of the Total Monthly
Monetary Transactions
* If Online System Response Time is more than 3%
4 seconds for 2% of the Total Monthly
Monetary Transactions
* If Online System Response Time is more than 5%
8 seconds for 2% of the Total Monthly
Monetary Transactions
Additionally, if Online System Response Time is more than 4
seconds for 2% of the Total Monthly Monetary Transactions
during two months in any twelve (12) month period, Customer
shall be entitled to a ten percent (10%) credit, in lieu of
the five percent (5%) credit defined above, on Account
Processing Fees for Open Active Accounts defined in Schedule
C, Section 1.a for the second month in which EDS fails to
achieve the Online System Response Time Performance Standard.
F-2
(c) If EDS fails to meet Substandard Performance Threshold
specified for MISER System Reporting and Output File
Availability, then Customer shall be entitled to a credit on
the Account Processing Fees defined in Schedule C, Section 1.a
for each subsequent month in which said Substandard
Performance Threshold is not met based on the following table:
ON-LINE SYSTEM RESPONSE TIME CREDIT
* If more than 2% of the Reports and Output Files 1%
are not available to Customer on time during a
given month
* If more than 3% of the Reports and Output Files 3%
are not available to Customer on time during
a given month
* If more than 5% of the Reports and Output Files 5%
are not available to Customer on time during a
given month
Additionally, if more than 5% of the Reports and Output Files
are not available to Customer on time during two months in any
twelve (12) month period, Customer shall be entitled to a ten
percent (10%) credit, in lieu of the five percent (5%) credit
defined above, on Account Processing Fees for Open Active
Accounts defined in Schedule C, Section 1.a for the second
month in which EDS fails to achieve the Reporting and Output
File Availability Performance Standard.
3. REPORTING: EDS agrees to provide to Customer, on a monthly basis, a report
indicating EDS' actual performance against the Performance Standards
identified in Schedule F, Sections 1.a, 1.c, and 1.d. Customer shall be
responsible for notifying EDS of its failure to perform against the
Performance Standards identified in Schedule F, Section 1.b. EDS reserves
the right to audit Customer Performance Standard analysis pertaining to
Schedule F, Section 1.b.
4. TERMINATION: In the event EDS fails to meet the Critical Performance
Threshold for the same Performance Standard for six (6) consecutive months,
then Customer may, by giving the defaulting party at least sixty (6) days
prior written notice thereof, terminate this Agreement as of a date
specified in such notice.
5. MISCELLANEOUS
5.1 Performance Standard Credits shall be paid to Customer in the form of
a of a credit against the amount payable by Customer to EDS under this
Agreement for the next ensuing month's invoice for services rendered
hereunder by EDS.
5.2 A single event of failure which causes EDS to fail to meet more than
one Performance Standard shall only reduce EDS' performance with
respect to one Performance Standard. EDS and Customer will agree as to
which Performance Standard will be affected by that single event.
Under no circumstance shall the aggregate credit hereunder exceed ten
percent (10%) of the total Account Processing Fees defined in Schedule
C, Section 1.a in a given month.
5.3 Measurement of EDS' actual performance under any Performance Standard
shall exclude time attributable to events of pre-scheduled downtime.
Pre-scheduled downtime shall include such things as regular preventive
maintenance, servicing of hardware, hardware upgrades, and software
upgrades. The times for pre-scheduled downtime shall be determined by
EDS in advance of the event, provided, however, that EDS will use
commercially reasonable efforts not to schedule any such pre-scheduled
downtime during normal business hours.
F-3
5.4 Notwithstanding anything to the contrary herein, EDS will not be held
responsible for, and may exclude from the calculation of compliance
with the Performance Standards, any failure to meet Performance
Standards if, during, and to the extent that such failure is related
to or caused by (a) regularly pre-scheduled downtime as described in
Section 4.3 of this Schedule F, (b) any matter constituting force
majeure, as provided in Section 8.3 of the Agreement, (c) Customer's
or its third-party providers' failure to perform its obligations under
the Agreement where such failure was the proximate cause of such
failure, (d) special production jobs, testing procedures or other
services which are given priority at the request of Customer, (e) any
significant increase in processing volumes or significant change in
the manner in which Customer conducts its business (in each case,
during a reasonable transition period to be agreed upon by EDS and
Customer in good faith), or (f) failure of the data communications
carrier lines between Customer and the EDS' System.
5.5 Customer acknowledges and agrees that the Performance Standard Credit
provided for herein will be the sole and exclusive remedy available to
Customer for EDS' failure to meet Performance Standards and Customer
Shall not be entitled to any additional remedies.
5.6 Customer and EDS agree that the purpose of the Performance Standards
set forth herein are to induce EDS to achieve performance levels which
are satisfactory to Customer and consistent with Customer's
experience. In the event, however, that EDS does not meet the
Performance Standards listed above, then Customer and EDS agree to
review the actual performance and its impact on Customer. If, in the
reasonable judgement of the parties, there is not significant adverse
impact on Customer, and if the Performance Standard cannot be
reasonably attained on a regular basis, then Customer and EDS agree to
negotiate in good faith to arrive at a revised Performance Standard,
or to waive the applicable credit pertaining to the particular
Performance Standard. Further, EDS and Customer acknowledge that
changing requirements may from time to time require modification of
Performance Standards. Accordingly, EDS and Customer agree to review
Performance Standards from time to time (but in no event less than
annually) and shall negotiate in good faith to arrive at mutually
agreeable revisions to the Performance Standards.
5.7 Reports to be available by the daily report deadline are those
produced by the MISER System critical path jobs as of the time of
conversion. The critical path jobs include single executions of: NDFP,
LNFP, NLFP, DLYEXP, DLYPRT, MSR900A, GLEXP, GLPRT, SVD090, SVM201,
LNM259, LNM260, TFD091, LND200, and DATABASE DUMP. If Customer
requests additional reports to be produced from these programs, or
additional functions to be performed by these programs, the impact on
the delivery schedule and the Performance Standards will be by mutual
agreement of the parties.
F-4
ADDENDUM 1
AMENDMENTS TO THE AGREEMENT FOR TECHNOLOGY SERVICES
WHEREAS, EDS, EIS (all references to EDS in this Addendum will be
deemed to include EIS) and Customer entered into the Agreement for Technology
Services ("Agreement") as of even date herewith.; and
WHEREAS, the Agreement provides that it cannot be changed without the
written agreement of EDS and Customer; and
WHEREAS, Customer has requested of EDS that EDS agree to certain
modifications to the Agreement as specified herein; and
WHEREAS, EDS is agreeable to the following indicated modifications to
the Agreement, for the consideration hereinafter indicated.
NOW THEREFORE, in and for the consideration hereinafter stated, and for
other good and valuable consideration, not herein recited but the sufficiency
and receipt of which are hereby acknowledged, EDS and Customer agree as follows:
1. INCORPORATION WITHIN AGREEMENT. This Addendum to the Agreement for
Technology Services shall be incorporated in the Agreement as if fully
set forth therein and shall for all intents and purposes be and become
a part of the Agreement.
2. MODIFICATION OF PARAGRAPH 2.1. The second and third sentences of
Paragraph 2.1 are modified to read as follows:
"Unless either party gives the other party written notice of intent to
terminate, at least six (6) months prior to the expiration date of the
Initial Term, then this Agreement will automatically renew for an
additional eighteen (18) months (the "Renewal Term"). Thereafter,
unless either party gives the other party written notice of intent to
terminate at least six (6) months prior to the expiration date of the
Renewal Term, then this Agreement will automatically renew for an
additional eighteen (18) months and continue until either party
terminates this Agreement under the foregoing terms."
3. MODIFICATION OF PARAGRAPH 3.1(B). Modify Paragraph 3.1(b) by deleting
the phrase "AND EDS AGREES TO PROVIDE".
4. MODIFICATION OF PARAGRAPH 3.2(b). Modify the first sentence of
Paragraph 3.2(b) to read as follows: "PROVIDE ALL EQUIPMENT AT
CUSTOMER'S EXPENSE, PLUS AN EDS MANAGEMENT FEE NOT TO EXCEED TEN
PERCENT (10%) OF EDS' COST(S), INCLUDING RELATED SHIPPING,
INSTALLATION, AND MAINTENANCE CHARGES, AND ADVISE CUSTOMER ON THE
COMPATIBILITY OF ITS EQUIPMENT WITH THE EDS SYSTEMS."
5. MODIFICATION OF PARAGRAPH 3.4. Modify the first sentence of Paragraph
3.4 to read as follows: "EDS WILL USE COMMERCIALLY REASONABLE 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."
6. MODIFICATION OF PARAGRAPH 3.4. The following is added to the end of
Paragraph 3.4 to read as follows:
Addendum 1-1
"BY ENTERING INTO THIS AGREEMENT, EDS AGREES THAT THE OFFICE OF THRIFT
SUPERVISION ("OTS") WILL HAVE THE AUTHORITY AND RESPONSIBILITY PROVIDED
TO THE OTHER REGULATORY AGENCIES PURSUANT TO THE BANK SERVICE
CORPORATION ACT, 12 U.S.C. 1867(C) RELATING TO SERVICES PERFORMED BY
CONTRACT OR OTHERWISE. EDS WILL, AT CUSTOMER'S EXPENSE, PROVIDE THE OTS
DISTRICT DIRECTOR OF THE DISTRICT IN WHICH THE DATA CENTER IS LOCATED
WITH ONE COPY OF (i) EDS' MOST RECENT INDEPENDENT DATA CENTER EDP AUDIT
WHEN SUCH AN AUDIT HAS BEEN PERFORMED AND (ii) EDS' MOST RECENT AUDITED
FINANCIAL STATEMENTS."
7. REPLACEMENT OF PARAGRAPH 3.5. Paragraph 3.5 shall be deleted in its
entirety and replaced with the following:
"3.5 FINANCIAL STATEMENTS AND EDP AUDIT. EDS WILL PROVIDE AT NO
CHARGE ONE COPY OF EDS' MOST RECENT AUDITED FINANCIAL
STATEMENTS TO CUSTOMER. EDS WILL ALSO PROVIDE TO CUSTOMER ONE
COPY OF EDS' MOST RECENT INDEPENDENT DATA CENTER EDP AUDIT, IN
AN INDUSTRY ACCEPTABLE FORMAT, AT EDS' THEN STANDARD CHARGE
FOR SUCH COPY; PROVIDED, HOWEVER, THAT SUCH CHARGE WILL NOT
EXCEED $1,500 FOR ANY ONE COPY. EDS WILL ENGAGE AN INDEPENDENT
THIRD PARTY TO CONDUCT A DATA CENTER EDP AUDIT ON AN ANNUAL
BASIS."
8. ADDITION OF PARAGRAPH 3.8. A new Paragraph 3.8 is hereby added to the
Agreement and reads as follows:
"3.8 PERFORMANCE STANDARDS: PERFORMANCE STANDARDS FOR THE SERVICES
ARE SET FORTH IN SCHEDULE F ("PERFORMANCE STANDARDS").
COMPLIANCE WITH PERFORMANCE STANDARDS WILL BE DETERMINED ON A
CALENDAR MONTH BASIS. IN ADDITION TO THE OTHER PROVISIONS OF
SCHEDULE F, IF EDS DOES NOT, DURING ANY CALENDAR MONTH, MEET
OR EXCEED ANY OF THE PERFORMANCE STANDARDS, THEN CUSTOMER AND
EDS WILL COOPERATE TO DETERMINE THE CAUSE THEREFOR AND THE
PARTY RESPONSIBLE FOR THE FAILURE TO MEET THE PERFORMANCE
STANDARDS. "
9. REPLACEMENT OF PARAGRAPH 4.3. Paragraph 4.3 shall be deleted in its
entirety and replaced with the following:
"4.3 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 (i) WITHIN FIVE (5) BUSINESS DAYS
AFTER RECEIPT OF DAILY REPORTS OR OUTPUT, (ii) WITHIN TEN (10)
BUSINESS DAYS AFTER RECEIPT OF MONTHLY REPORTS OR OUTPUT,
(iii) WITHIN THIRTY (30) BUSINESS DAYS AFTER RECEIPT OF ANNUAL
OR QUARTERLY REPORTS OR OUTPUT, (iv) WITHIN TEN (10) BUSINESS
DAYS AFTER RECEIPT OF ALL OTHER REPORTS OR OUTPUT AND (v)
WITHIN 10 BUSINESS DAYS AFTER RECEIPT OF NOTICE FROM CUSTOMERS
OF CUSTOMER, BUT IN NO EVENT TO EXCEED A TOTAL OF SIXTY (60)
DAYS FROM THE DATE SUCH REPORTS OR OUTPUT WERE MAILED, FOR ALL
MISER DEPOSIT AND LOAN MONTHLY STATEMENTS."
10. MODIFICATION OF PARAGRAPH 4.6. Modify Paragraph 4.6 by adding the
following at the end of the Paragraph: "NOTWITHSTANDING THE FOREGOING,
EDS SHALL PROVIDE TO CUSTOMER, OR ITS CUSTOMER SYSTEMS PROVIDER, A
MINIMUM OF THREE (3) MONTHS ADVANCE NOTICE OF ANY MATERIAL CHANGES TO
EDS' SYSTEMS THAT MAY AFFECT COMPATIBILITY WITH CUSTOMER SYSTEM(S)."
11. MODIFICATION OF PARAGRAPH 5.1(a). Modify Paragraph 5.1(a) by the
addition of the phrase "PRORATED FOR PARTIAL MONTHS SERVICE" at the end
of this paragraph.
12. MODIFICATION OF PARAGRAPH 5.1(c). Modify Paragraph 5.1(c) by the
addition of the phrase "PRORATED FOR PARTIAL MONTHS SERVICE" at the end
of this paragraph.
13. MODIFICATION OF PARAGRAPH 5.2(b). Modify the phrase "TRAVEL AND
TRAVEL-RELATED EXPENSES" in the first sentence to read "REASONABLE
TRAVEL AND TRAVEL-RELATED EXPENSES".
14. MODIFICATION OF PARAGRAPH 5.3. Modify the first sentence of Paragraph
5.3 to read as follows: "ALL CHARGES UNDER THIS AGREEMENT WILL BE DUE
AND PAYABLE WITHIN THIRTY (30) DAYS OF INVOICE DATE."
Addendum 1-2
15. MODIFICATION OF PARAGRAPH 6.5(e). Modify the first sentence of
Paragraph 6.5(e) by the addition of the following fourth bullet: "(iv)
ANY SIMILAR CONTINGENCY PLANNING REQUIREMENTS OF THE OFFICE OF THRIFT
SUPERVISION."
16. REPLACEMENT OF PARAGRAPH 7.2. Paragraph 7.2 shall be deleted in
its entirety and replaced with the following:
"7.2 TERMINATION DUE TO ACQUISITION. IF (i) FIFTY PERCENT OR MORE
OF THE STOCK OR ASSETS OF CUSTOMER, OR CUSTOMER'S HOLDING
COMPANY, ARE ACQUIRED BY ANOTHER PERSON OR ENTITY, WHETHER BY
MERGER, REORGANIZATION, SALE, TRANSFER, OR OTHER SIMILAR
TRANSACTION, (ii) CUSTOMER IS NOT THE SURVIVING ENTITY, AND
(iii) CUSTOMER'S DATA WILL BE PROCESSED BY THE ACQUIRING
ENTITY OR ITS CURRENT VENDOR, THEN 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 MAY TERMINATE THIS AGREEMENT UPON
EITHER A MUTUALLY AGREEABLE DATE OR, IN THE EVENT THE PARTIES
ARE UNABLE TO AGREE ON SUCH DATE, THE LATER OF (i)
CONSUMMATION OF THE ACQUISITION OR (ii) A DATE BASED ON THE
FOLLOWING TABLE:
i. TWELVE MONTHS FOLLOWING WRITTEN NOTICE FROM
EITHER PARTY IF SUCH NOTICE IS PROVIDED IN
MONTHS ONE THROUGH TWELVE (1-12) FOLLOWING
THE OPERATIONAL DATE.
ii. NINE (9) MONTHS FOLLOWING WRITTEN NOTICE
FROM EITHER PARTY IF SUCH NOTICE IS PROVIDED
IN MONTHS THIRTEEN THROUGH THIRTY-SIX
(13-36) FOLLOWING THE OPERATIONAL DATE.
iii. SIX (6) MONTHS FOLLOWING WRITTEN NOTICE FROM
EITHER PARTY IF SUCH NOTICE IS PROVIDED IN
MONTHS THIRTY-SEVEN THROUGH SIXTY (37-60)
FOLLOWING THE OPERATIONAL DATE.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN
THE EVENT CUSTOMER IS ACQUIRED BY ANOTHER FINANCIAL
INSTITUTION WHICH IS A PRE-EXISTING, CONTRACTUAL CUSTOMER OF
EDS FOR THE PROVISION OF SUBSTANTIALLY THE SAME SERVICES AS
THOSE PROVIDED UNDER THIS AGREEMENT USING THE MISER OPERATING
SYSTEM, THEN CUSTOMER MAY TERMINATE THIS AGREEMENT PURSUANT TO
THIS SECTION 7.2 AND WILL PAY TO EDS THE AMOUNTS DESCRIBED IN
SECTION 7.7, AND NOT THOSE AMOUNTS DESCRIBED IN SECTION 7.6."
17. REPLACEMENT OF PARAGRAPH 7.4. Paragraph 7.4 shall be deleted in
its entirety and replaced with the following:
"7.4 TERMINATION FOR CAUSE., IF EITHER PARTY MATERIALLY OR
REPEATEDLY DEFAULTS IN ITS PERFORMANCE UNDER THIS AGREEMENT
(EXCEPT FOR (i) NON-PAYMENT OF AMOUNTS DUE TO EDS WHICH SHALL
BE GOVERNED BY THE PROVISIONS OF SECTION 7.3 AND (ii) EDS'
FAILURE TO MEET PERFORMANCE STANDARDS WHICH SHALL BE GOVERNED
BY THE PROVISIONS OF SCHEDULE F) AND FAILS TO EITHER
SUBSTANTIALLY CURE SUCH DEFAULT WITHIN NINETY DAYS AFTER
RECEIVING WRITTEN NOTICE SPECIFYING THE DEFAULT OR, FOR THOSE
DEFAULTS WHICH CANNOT REASONABLY BE CURED WITHIN NINETY 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 DAYS PRIOR WRITTEN NOTICE THEREOF, TERMINATE
THIS AGREEMENT AS OF A DATE SPECIFIED IN SUCH NOTICE. THE
PARTIES AGREE THAT MATERIALLY OR REPEATEDLY INCORRECT REPORTS
OR OUTPUT PROVIDED BY EDS AND REJECTED BY CUSTOMER WITHIN THE
TIMEFRAMES SPECIFIED IN SECTION 4.3 SHALL BE SUBJECT TO THE
PROVISIONS OF THIS SECTION 7.4."
Addendum 1-3
18. MODIFICATION OF PARAGRAPH 7.6(a). The following is added to the
end of Paragraph 7.6(a) to read as follows:
"EDS WILL PERFORM ANY ADDITIONAL SERVICES REASONABLY REQUESTED BY
CUSTOMER FOR DECONVERSION ASSISTANCE AT EDS' THEN STANDARD CHARGES;
PROVIDED, HOWEVER, THAT IN THE EVENT EDS TERMINATES THIS AGREEMENT
PURSUANT TO SECTIONS 7.3 OR 7.5, ALL SUCH CHARGES WILL BE PAID BY
CUSTOMER ON A MONTHLY BASIS IN ADVANCE."
19. REPLACEMENT OF PARAGRAPH 7.6 (b). Paragraph 7.6(b) shall be deleted
in its entirety and replaced with the following:
"(b) (i) IN THE EVENT OF TERMINATION OF THIS AGREEMENT PURSUANT TO
SECTION 7.3, 7.4, 7.5 OR 7.8 (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 OR
SECTION 4 OF SCHEDULE F) FIFTY PERCENT (50%) 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 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 MINIMUM CHARGE FOR BASIC SERVICES UNDER
THIS AGREEMENT DURING THE TWELVE CALENDAR MONTHS IMMEDIATELY
PRECEDING THE CALENDAR MONTH IN WHICH NOTICE OF TERMINATION
WAS GIVEN, AND MULTIPLYING THAT NUMBER BY FIFTY PERCENT (50%).
THIS IS EXPRESSED MATHEMATICALLY AS FOLLOWS:
(NUMBER OF MONTHS REMAINING IN TERM) X (MINIMUM CHARGE FOR
BASIC SERVICES FOR THE TWELVE MONTHS PRECEDING NOTICE OF
TERMINATION) X 0.50
IF THIS AGREEMENT HAS BEEN IN EFFECT LESS THAN TWELVE 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 MINIMUM CHARGE FOR BASIC SERVICES DURING THE
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 MINIMUM CHARGE FOR BASIC SERVICE TO BE
PAID BY CUSTOMER AFTER THE OPERATIONAL DATE.
(ii) IN THE EVENT OF TERMINATION OF THIS AGREEMENT PURSUANT TO
SECTION 7.2, THE AMOUNT OF TOTAL COMPENSATION WILL BE
COMPUTED AS FOLLOWS:
i. $300,000.00 IF WRITTEN NOTICE OF SUCH TERMINATION FROM
EITHER PARTY IS PROVIDED IN MONTHS ONE THROUGH TWELVE
(1-12) FOLLOWING THE OPERATIONAL DATE.
ii. $200,000.00 IF WRITTEN NOTICE OF SUCH TERMINATION FROM
EITHER PARTY IS PROVIDED IN MONTHS THIRTEEN THROUGH
TWENTY-FOUR (13-24) FOLLOWING THE OPERATIONAL DATE.
iii. $150,000.00 IF WRITTEN NOTICE OF SUCH TERMINATION FROM
EITHER PARTY IS PROVIDED IN MONTHS TWENTY-FIVE THROUGH
THIRTY-SIX (25-36) FOLLOWING THE OPERATIONAL DATE. IV.
$75,000.00 IF WRITTEN NOTICE OF SUCH TERMINATION FROM
EITHER PARTY IS PROVIDED IN MONTHS THIRTY-SEVEN THROUGH
FORTY-EIGHT (37-48) FOLLOWING THE OPERATIONAL DATE.
v. $50,000.00 IF WRITTEN NOTICE OF SUCH TERMINATION FROM
EITHER PARTY IS PROVIDED IN MONTHS FORTY-NINE THROUGH
SIXTY (49-60) FOLLOWING THE OPERATIONAL DATE.
(iii) AMOUNTS PAYABLE UNDER SECTION 7.6(B) SHALL BE PAID UPON
SUBMISSION OF THE APPLICABLE TERMINATION NOTICE. ALL OTHER
AMOUNTS 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."
Addendum 1-4
20. ADDITION OF PARAGRAPH7.8. A new Paragraph 7.8 is hereby added to the
Agreement and reads as follows:
"7.8 TERMINATION FOR CONVENIENCE. AT ANY TIME, FOR ANY REASON,
AFTER THE LAST DAY OF THE FIRST MONTH FOLLOWING THE MONTH IN
WHICH THE OPERATION DATE OCCURS AND AS LONG AS CUSTOMER IS NOT
THEN AND DOES NOT BECOME IN DEFAULT UNDER THIS AGREEMENT,
CUSTOMER MAY TERMINATE THIS AGREEMENT FOR CONVENIENCE AND
WITHOUT CAUSE BY GIVING EDS AT LEAST SIX (6) MONTHS' PRIOR
WRITTEN NOTICE DESIGNATING THE EFFECTIVE DATE OF TERMINATION
AS LONG AS CUSTOMER IS NOT THEN AND DOES NOT BECOME IN DEFAULT
UNDER THIS AGREEMENT PRIOR TO THE TERMINATION DATE AND PAYS TO
EDS, ON OR BEFORE THE TERMINATION DATE, ALL AMOUNTS SET FORTH
IN SECTION 7.6(a) AND SECTION 7.6(b)(i)."
21. ADDITION OF PARAGRAPH 7.9. A new paragraph 7.9 is hereby added to the
Agreement and reads as follows:
"7.9 REGULATORY TERMINATION. IN THE EVENT THAT CONTROL OF CUSTOMER
IS ASSUMED BY THE OFFICE OF THRIFT SUPERVISION, THE FEDERAL
DEPOSIT INSURANCE CORPORATION, OR ANOTHER DULY AUTHORIZED
PUBLIC AUTHORITY, THEN EITHER PARTY MAY, BY GIVING PRIOR
NOTICE TO THE OTHER PARTY, TERMINATE THIS AGREEMENT AND THE
PAYMENT DUE UPON TERMINATION AS SET FORTH IN SECTION 7.6 SHALL
NOT INCLUDE THE AMOUNT DESCRIBED IN SECTION 7.6(b)(i)."
22. REPLACEMENT OF PARAGRAPH 8.1. Paragraph 8.1 shall be deleted in its
entirety and replaced with the following:
"8.1 LIMITATION OF LIABILITY. IF EDS BECOMES LIABLE TO THE CUSTOMER
UNDER THIS AGREEMENT FOR ANY REASON (INCLUDING LIABILITY
ARISING FROM MATERIALLY OR REPEATEDLY INCORRECT REPORTS OR
OUTPUT PROVIDED BY EDS, WHETHER ARISING BY NEGLIGENCE 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
5.1 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, . THE PARTIES AGREE THAT CUSTOMER HAS
A DUTY TO EXERCISE REASONABLE DILIGENCE, CONSISTENT WITH THE
CUSTOMS OF THE BANKING INDUSTRY, TO IDENTIFY AND CORRECT
READILY APPARENT ERRORS IN THE REPORTS AND OUTPUT PRODUCED BY
EDS BEFORE USING SUCH REPORTS AND OUTPUT, AND EDS SHALL HAVE
NO LIABILITY TO CUSTOMER FOR SUCH READILY APPARENT ERRORS IF
CUSTOMER, IN THE EXERCISE OF SUCH REASONABLE DILIGENCE, COULD
HAVE IDENTIFIED SUCH ERRORS WITHIN THE TIMEFRAMES SPECIFIED IN
SECTION 4.3. CUSTOMER MAY NOT ASSERT ANY CAUSE OF ACTION
AGAINST EDS OF WHICH 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."
Addendum 1-5
23. REPLACEMENT OF PARAGRAPH 8.2. Paragraph 8.2 shall be deleted in its
entirety and replaced with the following:
"8.2 WARRANTY.
(a) PERFORMANCE. EDS REPRESENTS AND WARRANTS TO EXERCISE
REASONABLE CARE IN PERFORMING SERVICES AND THAT ALL SERVICES
WILL BE PERFORMED IN A PROFESSIONAL AND WORKMANLIKE MANNER.
(b) VIRUSES. EDS WILL USE COMMERCIALLY REASONABLE MEASURES TO
SCREEN ANY SOFTWARE PROVIDED OR MADE AVAILABLE BY IT TO THE
OTHER PARTY HEREUNDER FOR THE PURPOSE OF AVOIDING THE
INTRODUCTION OF ANY "VIRUS" OR OTHER COMPUTER SOFTWARE ROUTINE
OR HARDWARE COMPONENTS WHICH ARE DESIGNED (i) TO PERMIT ACCESS
OR USE BY THIRD PARTIES TO THE SOFTWARE OF THE OTHER PARTY NOT
AUTHORIZED BY THIS AGREEMENT, (ii) TO DISABLE OR DAMAGE
HARDWARE OR DAMAGE, ERASE OR DELAY ACCESS TO SOFTWARE OR DATA
OR (iii) TO PERFORM ANY OTHER SIMILAR ACTIONS.
(c) PASS-THROUGH WARRANTIES AND INDEMNITIES. EDS AGREES THAT IT
WILL PASS THROUGH TO CUSTOMER ANY RIGHTS IT OBTAINS UNDER
WARRANTIES AND INDEMNITIES GIVEN BY ITS THIRD PARTY
SUBCONTRACTORS OR SUPPLIERS IN CONNECTION WITH ANY SERVICES,
SOFTWARE, EQUIPMENT OR OTHER PRODUCTS PROVIDED BY EDS PURSUANT
TO THIS AGREEMENT TO THE EXTENT PERMITTED BY THE APPLICABLE
SUBCONTRACTORS OR SUPPLIERS. IN THE EVENT OF A THIRD PARTY
SOFTWARE OR EQUIPMENT NONCONFORMANCE, EDS WILL COORDINATE
WITH, AND BE THE POINT OF CONTACT FOR RESOLUTION OF THE
PROBLEM THROUGH, THE APPLICABLE VENDOR AND, UPON BECOMING
AWARE OF A PROBLEM, WILL NOTIFY SUCH VENDOR AND WILL USE
COMMERCIALLY REASONABLE EFFORTS TO CAUSE SUCH VENDOR TO
PROMPTLY REPAIR OR REPLACE THE NONCONFORMING ITEM IN
ACCORDANCE WITH SUCH VENDOR'S WARRANTY. IF ANY WARRANTIES OR
INDEMNITIES MAY NOT BE PASSED THROUGH, EDS AGREES THAT IT
WILL, UPON THE REQUEST OF CUSTOMER, TAKE REASONABLE ACTION TO
ENFORCE ANY APPLICABLE WARRANTY OR INDEMNITY WHICH IS
ENFORCEABLE BY EDS IN ITS OWN NAME. HOWEVER, EDS WILL HAVE NO
OBLIGATION TO RESORT TO LITIGATION OR OTHER FORMAL DISPUTE
RESOLUTION PROCEDURES TO ENFORCE ANY SUCH WARRANTY OR
INDEMNITY UNLESS EDS CHOOSES TO DO SO AND CUSTOMER AGREES TO
REIMBURSE EDS FOR ALL COSTS AND EXPENSES INCURRED IN
CONNECTION THEREWITH, INCLUDING REASONABLE ATTORNEYS' FEES AND
EXPENSES.
(d) DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS SECTION 8.2, 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 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."
24. MODIFICATION OF PARAGRAPH 8.3. The second sentence of Paragraph 8.3
is amended to read as follows:
Addendum 1-6
"SUCH NONPERFORMANCE WILL NOT BE A DEFAULT OR A GROUND FOR TERMINATION
SO LONG AS (i) IT COULD NOT HAVE BEEN PREVENTED BY REASONABLE
PRECAUTIONS AND (ii) REASONABLE MEANS ARE TAKEN TO EXPEDITIOUSLY REMEDY
THE PROBLEM CAUSING SUCH NONPERFORMANCE. TO THE EXTENT THAT CONTINGENCY
PLANNING SERVICES ARE INCLUDED IN THE SERVICES, THE FOREGOING WILL NOT
LIMIT EDS' OBLIGATION TO PROVIDE SUCH SERVICES UNLESS THEY ALSO ARE
AFFECTED BY THE FORCE MAJEURE EVENT."
25. ADDITION OF PARAGRAPH 8.6. A new Paragraph 8.6 is hereby added to the
Agreement and reads as follows:
"8.6 PATENT INDEMNITY. EDS WILL INDEMNIFY, DEFEND, AND HOLD
HARMLESS CUSTOMER FROM ANY AND ALL CLAIMS, ACTIONS, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION,
REASONABLE ATTORNEYS' FEES AND EXPENSES) ARISING OUT OF ANY
CLAIMS OF INFRINGEMENT BY EDS OF ANY U.S. 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 EDS.
HOWEVER, THE INDEMNITY WILL NOT APPLY UNLESS CUSTOMER INFORMS
EDS AS SOON AS PRACTICABLE OF ANY CLAIM OR ACTION ALLEGING
SUCH INFRINGEMENT, AND HAS GIVEN EDS FULL OPPORTUNITY TO
CONTROL THE RESPONSE THERETO AND THE DEFENSE THEREOF,
INCLUDING, WITHOUT LIMITATION, ANY AGREEMENT RELATING TO
SETTLEMENT. EDS WILL NOT BE LIABLE TO CUSTOMER FOR CLAIMS OF
INDIRECT OR CONTRIBUTORY INFRINGEMENT."
26. ADDITION OF PARAGRAPH 8.7. A new Paragraph 8.7 is hereby added to the
Agreement and reads as follows:
"8.7 ATTORNEYS' FEES. IF THERE IS AN ARBITRATION PROCEEDING
PURSUANT TO THE PROVISIONS OF SECTION 7.1, THE PREVAILING
PARTY SHALL BE ENTITLED TO RECOVER REASONABLE ATTORNEYS' FEES
AND OTHER COSTS INCURRED IN THAT ACTION OR PROCEEDING,
INCLUDING. IN ADDITION TO ANY OTHER RELIEF TO WHICH IT MAY BE
ENTITLED, RECOVERY OF ANY REASONABLE ATTORNEYS' FEES INCURRED
BY THE PREVAILING PARTY IF ANY LEGAL ACTION OR OTHER
PROCEEDING IS BROUGHT FOR THE ENFORCEMENT OF AN AWARD UNDER
SECTION 7.1."
27. REPLACEMENT OF PARAGRAPH 9.3. Paragraph 9.3 shall be deleted in
its entirety and replaced with the following:
"9.3 NOTICES. ANY NOTICE UNDER THIS AGREEMENT WILL BE DEEMED TO BE
GIVEN WHEN (i) DELIVERED BY HAND OR WHEN MAILED BY REGISTERED
UNITED STATES MAIL, RETURN RECEIPT REQUESTED, AND (ii)
ADDRESSED TO THE RECIPIENT PARTY AT ITS ADDRESS SET FORTH
BELOW:
IF TO CUSTOMER:
FIDELITY FEDERAL BANK, FSB
4565 COLORADO BLVD.
LOS ANGELES, CALIFORNIA 90039
ATTENTION: PRESIDENT
WITH COPY TO:
FIDELITY FEDERAL BANK, FSB
4565 COLORADO BLVD.
LOS ANGELES, CALIFORNIA 90039
ATTENTION: LEGAL DEPARTMENT;
IF TO EDS:
EDS
1901 SUMMIT TOWER BOULEVARD
ORLANDO, FL 32810-5910
ATTN: PRESIDENT, MISER DIVISION.
Addendum 1-7
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."
28. MODIFICATION OF PARAGRAPH 9.9. Modify the phrase "STATE OF TEXAS" in
the first sentence of Paragraph 9.9 to read "STATE OF DELAWARE".
29. EFFECT OF ADDENDUM. Except for the foregoing described changes to the
Agreement, the Agreement shall in all other respects remain in full
force and effect, unchanged hereby. By execution of this Addendum
Customer agrees to be bound by the terms of the Agreement in each and
every respect with regard to the changes created in this Addendum as if
this Addendum had been fully set forth in the Agreement. There shall be
no change in the warranties, representations, liabilities, or
obligations of EDS under the Agreement by virtue of this Addendum
except as expressly set forth herein.
Addendum 1-8
IN WITNESS WHEREOF, the parties hereto have executed this Addendum in
manner and form sufficient to bind them on the day and year indicated after
their respective execution hereof.
Customer: Accepted by:
FIDELITY FEDERAL BANK ELECTRONIC DATA SYSTEMS CORPORATION
By: /S/ JAMES E. STUTZ By: /S/ PAUL W. DUCKHAM
- ----------------------------------- -----------------------------------
Authorized Signature Authorized Signature
JAMES E. STUTZ, PAUL W. DUCKHAM,
President and Chief Operating Officer President, MISER Division
- ----------------------------------- -----------------------------------
Type or Print Name and Title Type or Print Name and Title
December 3, 1999 December 9, 1999
- ----------------------------------- -----------------------------------
Date Date
Addendum 1-9