EXHIBIT 10 (K)
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[LETTERHEAD OF M&I DATA SERVICES APPEARS HERE]
DATA PROCESSING SERVICES AGREEMENT
THIS DATA PROCESSING SERVICES AGREEMENT is made as of this 2nd day of May
1997, ("the Agreement") by and between M&I Data Services, a division of the
Marshall & Ilsley Corporation, a Wisconsin corporation ("M&I") and The Bryn Mawr
Trust Company, a Pennsylvania corporation, together with its subsidiaries and
affiliates (collectively referred to as the "Customer").
RECITALS
WHEREAS, M&I provides trust data processing services to customers located
across the country; and
WHEREAS, M&I desires to provide trust data processing services to Customer,
and Customer desires to have M&I provide it with such services.
NOW, THEREFORE, in consideration of the recitals and for the good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Services.
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a. Trust Data Processing. M&I shall provide Customer with the trust
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data processing services requested by Customer utilizing the version of the
Trust System software made available from time to time by M&I through the M&I
Service Bureau (the "Services"). The functionality of the software and a further
description of the Services is set forth in Exhibit A and in the User Manuals,
copies of which will be provided, or made available to Customer. Customer shall
cause all future subsidiaries and affiliates, if and when any such future
subsidiary or affiliate terminates its agreement with the data processing vendor
providing services prior to the acquisition or affiliation, to purchase all of
their required trust data processing services from M&I, where M&I offers like or
similar trust data processing services to those required by the Customer, its
affiliates and subsidiaries and M&I consents to providing those services. Unless
otherwise agreed in writing between M&I and Customer, and subject to the other
provisions of the Agreement, M&I shall make the On-line Services available to
Customer, subject to normal downtime and maintenance, at times indicated on the
M&I On-line Availability Schedule in Exhibit A, as modified from time to time.
b. TrustDesk(TM) Software. For purposes of this Agreement, the term
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TrustDesk(TM) software shall mean desktop personal computer software developed
by M&I, delivered to the Customer in machine-readable code (object code) only,
together with related installation guide provided by M&I and identified in
Exhibit A.
M&I hereby grants to Customer a nonexclusive, nontransferrable, and
revocable license to use the TrustDesk(TM) software for its own internal
business
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purposes and solely accessible by the number of personal computers authorized on
Exhibit A. Customer acknowledges and agrees that TrustDesk(TM) software is
licensed to Customer on the condition that Customer currently, and continues to
have throughout the time period of this License, all of its data processed by
the M&I Trust System. Customer understands that this License does not include
the operating system which may be necessary to utilize the TrustDesk(TM)
software.
2. Fees and Taxes. Customer agrees to pay for the Services received in
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accordance with the provision of Exhibit B.
a. Additional Charges. Customer agrees to pay all communication
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costs, telecommunication charges, printline charges and other output costs,
start-up fees, pass-through charges, out-of-pocket expenses, conversion expenses
and fees, workshop fees, training fees, and late fees or charges billed as
miscellaneous on Customer's invoice (the "Miscellaneous Fees"). In addition to
the charges described above or set forth in Exhibit B, Customer agrees to pay
for any manufacturers, sales, use, excise, personal property, or any other tax
or charge, or duty or assessment levied or assessed by any governmental
authority upon or as a result of the execution or performance of any service
pursuant to this Agreement or materials furnished with respect to the Agreement,
except those taxes based on M&I's net income. the Customer shall also pay any
collection fees and reasonable attorney's fees incurred by M&I in collecting
payment of the charges and other amounts for which Customer is liable under the
terms and conditions of this Agreement.
b. Terms of Payment. Customer shall pay amounts due hereunder
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within thirty (30) days of the date such amounts are invoiced to Customer.
c. Modification of Terms and Pricing. If Customer is in default and
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M&I elects to continue to provide the Services, Customer agrees to pay M&I all
unamortized conversion expenses in advance of M&I performing any additional
Services. In addition, Customer agrees that all charges for Services shall be
computed using one hundred ten percent (110%) of the prices established in
Exhibit B, paid in advance as determined by M&L. Upon Customer's cure of the
default, charges for Services shall revert to those prescribed in Section 2(a),
above. At M&I's option, such Services shall be provided on a month-to-month
basis.
3. Term.
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a. Initial Term. This Agreement shall be effective upon execution
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by both parties, and both parties will promptly undertake the activities
necessary to convert Customer's data. M&I currently anticipates, subject to
Customer's timely and satisfactory completion of its responsibilities described
in the M&I Conversion Manual and in the Conversion Schedule to be established
by M&I, and agreed to by Customer, that all conversion activities will be
completed on November 28, 1997 (the "Conversion Date"). The TrustDesk(TM)
Software shall be deemed to have been accepted as of the Conversion Date. The
term of this Agreement shall continue for a period of seventy-two (72) months
from the Conversion Date.
b. Renewal Obligations. During any renewal term, or for any
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Services provided after the end of the initial term, whether or not the
Agreement is renewed, Customer agrees that the terms of this Agreement shall
continue to apply,
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except that all charges for Services shall be computed using one hundred eight
percent (108%) of the prices established on Exhibit B. At M&I's option, such
Services shall be provided by M&I on a month-to-month basis.
4. Affiliates. All processing for Customer and Customer's subsidiaries
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and affiliates which M&I does shall be included as part of the Services
provided under this Agreement and shall be done in accordance with the terms and
conditions of this Agreement. Customer agrees that it is responsible for
assuring compliance with the Agreement by its affiliates and subsidiaries.
Customer agrees to be responsible for the submission of its affiliates' data to
M&I for processing and for the transmission to Customer's affiliates of such
data processed by and received from M&I. Customer agrees to pay any and all
fees owed under this Agreement for Services hereunder.
5. Confidentiality. Both parties will, to the extent and in accordance
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with their policies used to protect their own information of similar importance,
use their best efforts to refrain from and prevent the use of or disclosure of
any confidential information of the other party, disclosed or obtained by such
party while performing its obligations under this Agreement, except when such
use or disclosure is for the purpose of providing the Services. Neither party
will have an obligation of confidentiality with regard to any information
insofar as the same: (1) was known to such party prior to disclosure; (2) is or
becomes publicly available other than as a result of a breach of this Agreement;
or (3) is disclosed to such party by a third party not subject to an obligation
of confidentiality. Nor shall the obligation of confidentiality occur where
disclosure is made pursuant to: (1) any law of the United States or any state
thereof; (2) the order of any court or governmental agency; or (3) the rules and
regulations of any governmental agency.
Customer agrees to notify M&I promptly of the circumstances
surrounding any unauthorized possession, use, or knowledge of any part of the
TrustDesk(TM) software, or any other information or documentation made available
pursuant to this Agreement to anyone other than persons properly authorized by
Customer to have such possession, use, or knowledge.
Customer acknowledges and agrees that the TrustDesk(TM) software,
including all authorized and unauthorized copies, are proprietary to and
valuable trade secrets of M&I, as the case may be, and Customer shall maintain
their confidential nature. Customer agrees that the TrustDesk(TM) software shall
be used only in accordance with this Agreement, and Customer shall not assign,
sell, lease, market, transfer, reproduce, or disclose the TrustDesk(TM) software
or any modification thereto to others. Customer shall limit access to the
TrustDesk(TM) software to Customer's employees or third parties, when such
persons (1) are performing services for the Customer, related to the Customer's
authorized use of the TrustDesk(TM) software; and (2) have a valid need to know
and have established a legal obligation with the Customer to protect the
TrustDesk(TM) software from unauthorized copying or use. Customer shall exercise
all reasonable precautions to prevent access to the TrustDesk(TM) software by
persons not authorized by terms of this Agreement. Customer shall store the
TrustDesk(TM) software in a secure place at all times it is not being used. In
addition, Customer shall take appropriate measures to prevent copying,
distribution, reverse engineering, and reverse compiling of the
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TrustDesk(TM) software. Customer recognizes that the TrustDesk(TM) software may
be patented, copyrighted, trademarked, or otherwise protected by M&I, as the
case may be, and Customer will not undertake to patent, copyright, trademark, or
otherwise apply for a proprietary grant or right with respect to the
TrustDesk(TM) software.
6. Programming. M&I reserves the right to determine the programming
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(whether hardware or software) utilized with the equipment used in fulfilling
its duties under this Agreement. All programs (including ideas and know-how and
concepts) developed by M&I are and remain its sole property.
7. Equipment. Customer shall obtain and maintain at its own expense such
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data processing and communications equipment as may be necessary or appropriate
to facilitate the proper use and receipt of the Services. Customer shall pay all
installation, monthly, and other charges relating to the installation and use of
communications lines in connection with the Services. M&I maintains and will
continue to maintain a network control center with diagnostic capability to
monitor communication line reliability and availability. M&I shall not be
responsible for the reliability monitoring or continued availability of the
communications lines used by Customer in accessing the Services. M&I agrees to
reasonably perform diagnostic services and communicate to vendors any
deficiencies of which M&I is or becomes aware.
8. Supplies. Customer shall pay for all supplies used in connection with
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the Services. All forms, supplies, or materials used in processing Customer's
items and input data shall meet M&I's specifications.
9. Systems Modification; Amendment of Services. M&I may modify, amend,
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enhance, update, withdraw, or provide the appropriate replacement for any of the
Services, the software used to provide the Services, or any element of its
systems at any time to: (1) improve the Services, or (2) facilitate the
continued economic provisions of the Services, provided that with respect to any
such modification, amendment, or replacement there is no material reduction in
the functionality provided to Customer by the core elements of the software (M&I
Trust System) upon providing one hundred twenty (120) days' prior written notice
to Customer. Either party may also terminate any of the Services immediately
upon any regulatory, legislative, or judicial determination that providing such
Services is inconsistent with applicable law or regulation or upon imposition by
any such authority of restrictions or conditions which would detract from the
economic or other benefits to M&I or Customer to any element of the Services.
M&I shall use its best efforts in developing future releases and
upgrades of the TrustDesk(TM) software and accompanying documentation. If M&I
does develop future releases and upgrades which replace or supersede any other
version of the TrustDesk(TM) software then in use by the Customer, the Customer
agrees to install the new release as of the effective date stated on the
release. Any earlier version of the TrustDesk(TM) software will not be supported
by M&I after the effective date of the new release, if any.
10. Disaster Recovery. M&I maintains, and shall continue to maintain
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throughout the term of this Agreement, off-site disaster recovery capabilities
which permit M&I to recover from a disaster and continue providing Services to
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Customers within a commercially reasonable period. An executive summary of the
current disaster recovery plan, which may change from time to time, is available
upon request from M&I at no charge. M&I shall test the operation and
effectiveness of its disaster recovery plan at least annually. M&I maintains,
and shall continue to maintain throughout the term of this Agreement, a backup
power supply system to guard against electrical outages.
11. Events of Default. It shall be an Event of Default on the part of
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the Customer if: (1) Customer is insolvent, or a receiver or conservator shall
be appointed with respect to the Customer; or (2) Customer shall fail to pay any
sum due M&I within the prescribed time; or (3) if Customer shall fail to perform
any of its other covenants or obligations under this Agreement where the failure
of Customer to perform has a material adverse impact on M&I and is material to
Customer's obligations hereunder; or (4) if Customer shall breach its
confidentiality obligations under Section 5 of this Agreement. It shall be an
Event of Default on the part of M&I if M&I shall fail to perform any of its
obligations under this Agreement where the failure of M&I to perform has a
material adverse impact on Customer and is material to the provision of the
Services, except for those obligations under Section 20 as to which the
Agreement provides remedies for M&I failure to perform. The defaulting party
shall have ten (10) days from the date of receipt of notice from the
nondefaulting party or nonpayment or nonperformance to cure such an Event of
Default, before the nondefaulting party may exercise any remedies it may have as
a result of the Event of Default.
12. Remedies Upon Default; Limitation of Liabilities. If an Event of
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Default occurs on the part of the Customer, and is not cured within the ten (10)
day period prescribed in Section 11, M&I may (a) terminate this Agreement; (b)
terminate access to its central processing unit by the Customer; and (c) declare
all amounts payable under this Agreement to be immediately due payable and file
suit for or otherwise obtain payment from the Customer of any fees or other sums
due it pursuant to this Agreement, plus any actual damages to its equipment or
systems caused by the Customer's actions, failures to act, equipment, systems,
or communication facilities, plus any profits lost because of the Customer's
default. If an Event of Default occurs on the part of M&I, and is not cured
within the ten (10) day period prescribed in Section 11, the Customer may only:
(a) terminate this Agreement and (b) file suit or otherwise obtain payment of an
aggregate amount of fees paid by the Customer to M&I hereunder during the three
(3) months immediately preceding the Event of Default. Either party may also
seek specific performance, including injunctive relief, for a breach of Section
5 of this Agreement. M&I and the Customer agree that these damage provisions are
reasonable in light of all present predictable circumstances (including
expectable actual damages in the fees to be charged by M&I hereunder do not
include amounts sufficient to insure against greater claims). M&I and Customer
expressly waive all claims for additional, incidental, consequential,
compensatory or punitive damages and agree that the remedies set forth in this
Agreement shall be the sole and exclusive remedies of the parties. No lawsuit or
other action may be brought by either party hereto or on any claim or
controversy based upon or arising in any way out of this Agreement after one (1)
year from the date of the occurrence allegedly giving rise to the action, except
for nonpayment of sums due to M&I by Customer. M&I agrees that except in the
case of an Event of Default relating to a breach by the
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Customer of its confidentiality obligations under Section 5 of this Agreement,
M&I will not exercise its remedy to terminate Customer's access to the M&I
central processing unit so long as: (a) Customer is current in the payment of
all amounts due M&I as reflected on M&I's last invoice to Customer; and (b) only
exercise such remedy after providing Customer with sixty (60) days' prior
written notice.
13. Termination.
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a. End of Initial Term. This Agreement shall automatically be
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extended at the end of the initial seventy-two (72) month term for an additional
twelve (12) month renewal term, unless the Customer gives M&I at least one
hundred eighty (180) days' prior written notice of its intent to terminate,
which notice may be given during the initial term of the Agreement.
b. Renewal Term. During the renewal term, this Agreement shall be
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automatically extended for an additional one (1) month period on each monthly
anniversary date so that the term shall always be not less than twelve (12)
months, unless either party gives written notice to the other party of notice to
terminate, in which event the automatic renewals will end and the Agreement will
terminate at the end of the unexpired portion of the term in existence on the
date notice to terminate is given.
c. Termination Upon Default. This Agreement may also terminate
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upon an Event of Default and failure to cure beyond applicable cure periods at
the option of the nondefaulting party as set forth in Section 11 hereof.
d. Termination by Customer. Customer may terminate this Agreement
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at any time, and without cause, by giving M&I at lease one hundred eighty (180)
days' prior written notice and paying M&I the then-applicable buyout amount set
forth in Section 21.
14. Regulatory Assurances. M&I and Customer acknowledge and agree that
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the performance of these Services will be subject to regulation and examination
by Customer's regulatory agencies to the same extent as if such Services were
being performed by Customer. Upon request, M&I agrees to provide any appropriate
assurances to such agency and agrees to subject itself to any required
examination or regulation. Customer agrees to reimburse M&I for reasonable costs
actually incurred due to any such examination or regulation that is performed
solely for the purpose of examining data processing services used by the
Customer.
a. Notice Requirements. The Customer shall be responsible for
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complying with all regulatory notice provisions to any applicable governmental
agency, which shall include providing timely and adequate notice as of the
effective date of Services under this Agreement, identifying those records to
which this Agreement shall apply and the location at which such Services are to
be performed.
b. Examination of Records. The parties agree that the records
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maintained and produced under this Agreement shall, at all times, be available
for examination and audit by governmental agencies having jurisdiction over the
Customer's business. The Director of Examinations of the Federal Agency or his
designated representative shall have the right to ask for and to receive
directly from
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M&I any reports, summaries, or information contained in or derived from data in
the possession of M&I related to the Customer. M&I shall notify Customer as soon
as possible of any formal request by an authorized governmental agency to
examine Customer's records maintained by M&I, if M&I is permitted to make such a
disclosure to Customer under applicable law or regulations. Customer agrees that
M&I is authorized to provide all such described records when formally required
to do so by this authorized governmental agency.
c. Fidelity Bonds. M&I shall maintain fidelity bond coverage in
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the amount of not less than $1,000,000 for M&I and its employees as such
coverage is required by any governmental or regulatory agency.
d. Insurance. Throughout the term of this Agreement, M&I shall
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maintain insurance coverage (or shall be self-insured) in amounts reasonable for
a provider of data processing services for losses from fire, disaster, and
other causes contributing to interruption of the Services. The proceeds of such
insurance shall be payable to M&I. Nothing in this Agreement shall be construed
as to permit Customer to receive any of such proceeds, or to be named as an
additional loss payee under any insurance policy.
15. Transportation and/or Transmission of Data. The responsibility and
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expense for transportation and/or transmission of and risk of loss of data and
media to and from M&I's data centers shall be borne by Customer. M&I will notify
Customer of the time by which Customer's data and media must be delivered to M&I
for processing for M&I to provide Customer's processed data within the time
period indicated by M&I.
16. Responsibility.
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a. General. M&I agrees to perform the Services in a commercially
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reasonably manner, which is similar to the services provided to other M&I
customers, and no other or higher degree of care. Except as otherwise described
herein, M&I assumes no other obligation as to performance or quality of the
Services provided, all other risks of error being expressly assumed by Customer.
M&I shall not be responsible for loss or damage due to delays in processing or
in the delivery of processed data as a result of any of the causes excused by
Section 19 hereof. M&I WILL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES INCURRED BY CUSTOMER INCLUDING, BUT NOT LIMITED TO,
LOST PROFITS OR BUSINESS OPERATION LOSS, REGARDLESS OF WHETHER M&I WAS ADVISED
OF THE POSSIBLE OCCURRENCE OF SUCH DAMAGES.
b. Reliance on Data Supplied. M&I will process items and data and
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perform those Services described in this Agreement on the basis of information
furnished by Customer. M&I shall be entitled to rely upon any such data,
information, or instructions as provided by Customer. If any error results from
incorrect input supplied by Customer, Customer shall be responsible for
discovering and reporting such error and supplying the data necessary to correct
such error to M&I for processing at the earliest possible time. Customer will
indemnify and hold M&I harmless from any cost, claim, damage, or liability
(including attorneys' fees) whatsoever arising out of such data, information or
instructions, or any inaccuracy
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or inadequacy therein. Customer assumes all risk of loss, delay, and
miscommunication in the transportation or transmission by electronic means of
data and information from any terminal or remote unit unless the same is caused
by or attributable to any act or omission on M&I's part, which act or omission
does not meet the standard of care in Section 16(a), or was caused by or
attributable to any gross negligence or willful failure on M&I's part to comply
with its obligations under this Agreement.
c. Data Backup. Customer shall maintain adequate records of items being
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transmitted or transported to M&I from which reconstruction of lost or damaged
items or data can be made. Customer assumes all responsibility and liability for
any loss or damage resulting from failure to maintain such records.
d. Audit. M&I shall cause a third-party review of its data processing
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center and related internal controls to be conducted annually by its independent
auditors. M&I shall provide Customer, upon written request, one copy of the
report resulting from such review.
e. Regulatory Compliance. Customer is responsible for determining that
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the Services performed in its behalf, any forms which are used with its
customers, and all records it retains comply with all applicable laws. Should
Customer need information from the Services M&I provides in order to comply with
applicable federal or state laws and regulations, Customer's sole remedy, and
M&I's sole obligation shall be for M&I to provide the ability to process the
information requested from the Customer as promptly as is commercially
practicable.
f. Balancing and Controls. On a daily basis, Customer shall review all
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input and output, controls, reports, and documentation, to ensure the integrity
of data processed by M&I. In addition, Customer shall, on a daily basis, check
exception reports to verify that all file maintenance entries and nondollar
transactions were correctly entered. Customer is responsible for initiating
timely remedial action to correct any improperly processed data which these
reviews would disclose.
g. Service Deficiencies. If Customer is aware that a defect exists in a
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Service, Customer shall be responsible for making whatever appropriate
adjustments may thereafter be necessary until M&I corrects the defect and, if
requested by Customer, M&I will, at M&I's expense, assist Customer in making
such corrections through the most cost-effective means, whether manual, by
system reruns, or program modifications. M&I will, where reasonable, make every
effort to correct any known material defect as soon as commercially reasonable
at M&I's expense.
If, after investigation of the reported system error, it is
determined that the system error is beyond M&I's responsibility, including, but
not limited to, system errors resulting from modifications made by the Customer,
the Customer agrees to pay for M&I's efforts in investigating and/or resolving
the system error at M&I's then-current rates for such services, plus expenses
incurred by M&I.
17. Ownership of Data. Customer is the owner of all of its data supplied
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by Customer to M&I for processing hereunder. Customer acknowledges that it has
no rights in any of the software, systems documentation, guidelines, procedures,
and similar related materials or any modifications thereof except with respect
to M&I's use of the same during the term of this Agreement to process data. Upon
termination of this Agreement, M&I shall provide Customer with all copies of
Customer's data in a format that is being used by M&I at that time for
processing such data. Prior to the release of the Customer's data: (1) all
amounts owed under this Agreement by Customer to M&I shall be current and paid
in full, and (2) Customer shall pay M&I its "Estimated Deconversion Expenses" as
described below. Customer agrees to pay M&I for M&I's work in providing such
data at M&I's rates then in effect for computer and personnel time, supplies,
and other items as required, and Customer further agrees to pay M&I for any and
all charges associated with the deconversion of Customer's data based on M&I's
then-current charges for such Services. M&I shall make a good faith estimate of
all of such costs, expenses, and charges which shall be paid by Customer in
advance (the "Estimated Deconversion Expenses"). The difference, if any, between
the actual expenses and the prepaid Estimated Deconversion Expenses shall be
promptly paid after determination.
18. Warranties. M&I represents and warrants that:
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a. Capability of Computer Systems and Software. M&I's computer
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systems (hardware and software) are capable of performing the Services in
accordance with the provisions of this Agreement. The software used to provide
the Services will operate substantially in accordance with the specifications
and documentation for the software as modified from time to time to incorporate
enhancements or modifications of the software to provide the Services.
b. Quality of Service. The reports and Services made available to
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Customer shall be in substantial conformity with the User Manuals, as amended
from time to time, copies of which have been, or will be, provided to Customer.
c. Property Rights. M&I has the right to provide the Services
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hereunder, using all computer software required for that purpose.
d. Organization and Approvals. M&I is a validly organized
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corporate entity with valid authority to enter into this Agreement. This
Agreement has been duly authorized by all necessary corporate action.
e. Disclaimer of Warranties. EXCEPT AS DESCRIBED IN THIS SECTION OF
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THIS AGREEMENT, M&I DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL,
EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
19. Force Majeure. M&I shall not be liable to Customer if M&I's
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fulfillment or performance of any terms or provisions of this Agreement is
delayed or prevented by revolution or other civil disorders; wars; acts of
enemies; strikes; electrical equipment or availability failure; labor disputes;
fires; floods; acts of God; federal, state, or municipal action; statute;
ordinance or regulation; or, without limiting the foregoing, any other causes
not within its reasonable control, and
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which by the exercise of reasonable diligence it is unable to prevent, whether
of the class of causes hereinbefore enumerated or not.
20. Data Services Reliability and Responsiveness. Subject to the
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nonoccurrence of a force majeure and the performance of Customer's obligations
described in this Agreement, M&I agrees that the services will be provided in
accordance with the following standard. M&I will initiate batch processing and
have bank operations reports available for transmission to Customer or make the
processed item and reports within six (6) hours (fifteen (15) hours at year end)
after receiving all input data from Customer, and with such performance being
missed not more than two (2) processing days per calendar month. M&I will ensure
that its on-line computing facilities are available for the processing of
Customer's on-line transactions at a minimum of ninety-eight percent (98%) of
the time, as prescribed by Customer, measured over a calendar month at the point
of departure from M&I's communications controller. M&I will process CRT
synchronous transactions in an average of 2.5 seconds as measured over a
calendar month using IBM System Monitoring Facility (SMF) or similar product.
Should M&I not be able to achieve this objective, M&I may recommend network or
equipment upgrades over which Customer has control and Customer shall be
responsible for making such changes or accepting the response time that is
achieved. Customer will notify M&I in writing if these levels of performance are
not achieved, and M&I shall have ninety (90) days to meet these performance
standards. If after ninety (90) days the performance standard still has not been
met, the Customer's sole remedy shall be to either (i) terminate the agreement
without penalty upon giving M&I written notice within thirty (30) days after the
expiration of the ninety (90) day cure period, or (ii) accept such deficient
levels which M&I does achieve. M&I assumes no other liability, express or
implied, with respect to its obligations set forth in this paragraph.
21. Contract Buyout.
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a. Customer may terminate this Agreement at any time by giving M&I
at least one hundred eighty (180) days' prior written notice of termination and
paying M&I eighty percent (80%) of the total estimated remaining unpaid monthly
processing fees. For the purpose of this computation, total estimated remaining
unpaid monthly processing fees shall be equal to the mean average of the total
monthly fees paid in the three (3) months preceding the termination notice,
multiplied by the number of months remaining in the Agreement.
b. The contract buyout amount set forth above shall be paid prior to
the deconversion of any affected accounts. The contract buyout amount shall be
paid by Customer regardless of the form by which the termination occurs,
including but not limited to, sale of assets or stock, assumption of
liabilities, merger, consolidation, absorption, liquidation, or termination as a
result of an Event of Default on the part of the Customer (as described in
Section 11 of this Agreement).
22. IRS Filing. Customer has complied with all laws, regulations,
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procedures, and requirements in attempting to secure correct tax identification
numbers (TINs) for Customer's payees and agrees to attest to this compliance by
an affidavit providing annually. Customer authorizes M&I to act as Customer's
agent and sign on Customer's behalf the Affidavit required by the Internal
Revenue
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Service on Form 4804, or any successor form.
Customer acknowledges that M&I's execution of the Form 4804 Affidavit on
Customer's behalf does not relieve Customer of responsibility to provide
accurate TINs or liability for any penalties which may be assessed for failure
to comply with TIN requirements. Customer agrees to hold M&I harmless from any
liabilities, claims, expenses, penalties, or damages (including attorneys' fees)
which may be assessed or incurred as a result of the failure to comply with TIN
requirements.
23. Expense Reimbursements.
----------------------
a. Customer agrees to reimburse M&I for all out-of-pocket expenses
(travel, lodging, meals) reasonably incurred in connection with the initial
conversion (to include all applications listed in Exhibit A) of Customer's
accounts to the M&I system as incurred by M&I and invoiced to the Customer.
b. Customer agrees to reimburse M&I for all conversion charges
(out-of-pocket expenses and conversion programming, training, and support fees)
reasonably incurred in connection with the conversion of any accounts or
products which are not converted during the initial conversion as incurred by
M&I and invoiced to the Customer.
24. Conversion Obligations. Both parties agree to make a good faith
----------------------
effort to convert Customer's data in a timely fashion and to perform the
conversion in accordance with the responsibilities set forth in the M&I
Conversion Manual, the Conversion Schedule, and this Agreement. Customer further
agrees to provide such Services and perform such obligations as are contemplated
by the M&I Conversion Manual and the Conversion Schedule, and as necessary for
Customer to timely and adequately perform its obligations herein and therein.
Customer further agrees to cooperate fully with all reasonable requests of M&I
necessary to effect the conversion in a timely and efficient manner.
25. Use of the Services. (a) Customer assumes exclusive responsibility
-------------------
for the consequences of any instruction Customer may give M&I, for Customer's
failure to properly access the Services in the manner prescribed by M&I, and for
Customer's failure to supply accurate input information; (b) Customer agrees
that it will use the Services in accordance with such reasonable policies as may
be established by M&I from time to time as set forth in any materials furnished
by M&I to Customer; (c) Customer agrees that, except as otherwise permitted by
M&I, Customer will use the Services only for its own internal business purposes
and will not sell, provide access to, or otherwise provide, directly or
indirectly, any of the Services, or any of the Software (including any software
modified by the Customer) or any portion thereof to any third party; and (d)
Customer agrees and represents that (i) this Agreement has been approved by its
board of directors, or that the officer executing this Agreement has been
specifically authorized by Customer's board of directors to execute this
Agreement, (ii) the performance of this Agreement by the Customer will not
affect the safety or soundness of the Customer or any of its affiliates, and
(iii) this Agreement, and the obligations evidenced hereby, will be properly
reflected on the books and records of the Customer, and the Customer will
provide evidence of the same to M&I upon request.
11
[LETTERHEAD OF M&I DATA SERVICES APPEARS HERE]
26. Defense of Suit. M&I will defend Customer against any and all claims
---------------
that software furnished to Customer by M&I hereunder infringes a U.S. patent or
copyright and M&I will pay resulting costs, damages, and attorneys' fees
awarded, provided that:
a. Customer promptly notifies M&I in writing of the claim; and
b. M&I has sole control of the defense and all related settlement
negotiations.
If such claim has occurred or in M&I's opinion is likely to occur, Customer
agrees to permit M&I at M&I's option and expense, either to procure for
Customer the right to continue using the software or replace or modify the same
so that they become noninfringing. If neither of the foregoing alternatives is
reasonably available, Customer agrees on one (1) month's written notice from M&I
to return or destroy the original of the TrustDesk(TM) software received from
M&I and all copies thereof.
M&I shall have no obligation to defend Customer or to pay costs, damages, or
attorneys' fees for any claim based upon (i) user of other than a current
unaltered release of the software provided by M&I, utilized by Customer on
Customer's personal computers if such infringement would have been avoided by
the use of a current unaltered release of such software, or (ii) the
combination, operation, or use of any such software furnished hereunder with
non-M&I programs or data, or (iii) use of such software in other than the
environment described in this Agreement if such infringement would have been
avoided by use in such an environment.
The foregoing states the entire obligation of M&I with respect to
infringement of patents or copyrights.
27. Software Modified by Customer. M&I shall not be liable to Customer
-----------------------------
or others for software furnished to Customer which is modified by parties other
than M&I. Customer will own all rights to any modifications it makes to such
software, but Customer hereby agrees to notify M&I of any modifications. Under
no circumstances will Customer sell, distribute, or license such modifications.
Nothing herein will prevent M&I from developing and distributing its own
modifications to such software based on Customer's disclosure to M&I of its
modifications or upon similar ideas or concepts developed by M&I.
28. Miscellaneous.
-------------
a. Governing Law. This Agreement shall be construed and governed
-------------
by the laws of the state of Wisconsin.
b. Amendment. This Agreement, including the Schedule hereto, may
---------
be amended only by an instrument in writing executed by the parties or their
permitted assignees.
c. Assignment. This Agreement may not be assigned by either party
----------
without the prior written consent of the other party, which such consent shall
not be unreasonably withheld, provided that M&I may freely assign this Agreement
12
[LETTERHEAD OF M&I DATA SERVICES APPEARS HERE]
to any Company that is directly or indirectly (1) in control of M&I, (2) under
the control of M&I, or (3) under common control with M&I.
d. Section Headings. Section headings are for reference purposes only
----------------
and shall not affect the interpretation or meaning of this Agreement.
e. Notices. All communications or notices required or permitted by
-------
this Agreement shall be in writing and shall be deemed to have been given at the
earlier of the date when actually delivered to an officer of a party or when
deposited in the United States mail, certified or registered mail, postage
prepaid, return receipt requested, and addressed as set forth on the signature
page, unless and until any of such parties notifies the others.
f. No Waiver of Performance. Failure by either party at any time to
------------------------
require performance by the other party to claim a breach of any provision of
this Agreement will not be construed as a waiver of any right accruing under
this Agreement, nor affect any subsequent breach, nor affect the effectiveness
of this Agreement or any part hereof, nor prejudice either party as regards any
subsequent action.
g. Entire Agreement; Conflicting Provisions. This Agreement,
----------------------------------------
together with the Schedules hereto, constitutes the entire agreement between the
Customer and M&I with respect to the subject matter hereof. There are no
restrictions, promises, warranties, covenants, or undertakings other than those
expressly set forth herein and therein. This Agreement supersedes all prior
negotiations, agreements, and undertakings between the parties with respect to
such subject matter. In the event of any conflict between the terms of the main
body of this Agreement and any of the Schedules hereto, the terms of the main
body of this Agreement shall govern.
h. Execution in Counterparts. This Agreement may be executed
-------------------------
simultaneously in any number of counterparts, each of which shall be deemed an
original but all of which shall together constitute one and the same Agreement.
i. Enforceability. The invalidity or enforceability of any provision
--------------
hereof shall not affect or impair any other provisions.
j. Scope of Agreement. If the scope of any of the provisions of the
------------------
Agreement is too broad in any respect whatsoever to permit enforcement to its
full extent, then such provisions shall be enforced to the maximum extent
permitted by law and the parties hereto consent and agree that such scope may be
judicially modified accordingly and that the whole of such provisions of this
Agreement shall not thereby fail, but that the scope of such provisions shall be
curtailed only to the extent necessary to conform to law.
k. Confidentiality of Terms. Customer agrees that neither it, its
------------------------
directors, officers, employees, or agents will disclose this Agreement, or any
of the terms or provisions of this Agreement, to any other party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
in their names as of the date first above written.
13
[LETTERHEAD OF M&I DATA SERVICES APPEARS HERE]
M&I DATA SERVICES, A DIVISION OF
THE MARSHALL & ILSLEY
CORPORATION, A WISCONSIN
CORPORATION ("M&I")
770 North Water Street
Milwaukee, WI 53202
By: /s/ Larry Brousseau
-------------------------
Name: Larry Brousseau
Title: Vice President
By: /s/ Michael E. Touhey
-------------------------
Name: Michael E. Touhey
Title: Senior Vice President and General
Manager--Trust Services Division
THE BRYN MAWR TRUST COMPANY
Customer")
Street Address
City, State, ZIP
By: /s/ Peter H. Havens
--------------------------
Name: Peter H. Havens
--------------------------
Title: EVP
--------------------------
14
[LETTERHEAD OF M&I DATA SERVICES APPEARS HERE]
ATTORNEY-IN-FACT APPOINTMENT
Customer hereby appoints M&I Date Services, a division of the Marshall &
Ilsley Corporation, a Wisconsin corporation ("M&I") as customer's attorney-in-
fact and empowers M&I to authorize the Internal Revenue Services (IRS) to
release informational documents supplied to the IRS by M&L to states which
participate in the "Combined Federal/State Program." Customer agrees to hold M&I
harmless from any liabilities, claims, expenses, penalties, or damages
(including attorney's fees) which may be assessed or incurred as a result of the
release of information.
THE BRYN MAWR TRUST COMPANY
("Customer")
By: /s/ Peter H. Havens
----------------------------
15
[LETTERHEAD OF M&I DATA SERVICES APPEARS HERE]
AFFIDAVIT
STATE OF Pennsylvania )
) SS.
COUNTY OF Montgomery )
I, Peter H. Havens , being first duly sworn, on oath, depose and say:
-------------------------
Customer's Representative
1. I am an employee of Bryn Mawr Trust Co. I have personal knowledge of
my employer's practices with regard to procuring and reporting tax
identification number (TINs) and authority to execute this Affidavit on my
employer's behalf.
2. Bryn Mawr Trust Co. has complied with all laws, regulations,
procedures, and requirements in attempting to secure correct TINs for its
payees. This compliance has been pursued with due diligence, and any failure to
secure correct TINs is due to reasonable cause.
/s/ Peter H. Havens
-----------------------------------------
Customer's Representative
Subscribed and sworn to before me
this 2nd day of May, 1997.
/s/ Irene E. Del Grosso
- -----------------------
Notary Public
- ----------------------
My Commission expires: 3-3-2001
------------
[SEAL OF NOTARY PUBLIC
APPEARS HERE]
16
EXHIBIT A
SERVICES
A. Trust Services
The services described herein refer only to the processing and reporting
services for Estates, Trust Under Will, Court Accounts, Trusts Under
Agreement, Insurance Trusts, Agencies, Custodian/Safekeeping, Corporate
Trusts, Pension/Profit Sharing accounts and Internal accounts including
Common Trust Funds (CTF) and Collective Investment Funds (CIF).
The banks and/or barnches included in this services proposal are:
(Customer's) Office
1. M&I shall provide complete processing services for the Customer as more
fully described in the Trust System Documentation manuals as of the
Customer's Conversion Date of November 28, 1997.
a. User Manual Volume 1
b. User Manual Volume 2
c. User Manual Volume 3
d. User Manual Volume 4
e. Reports Usage Manual 1
f. Reports Usage Manual 2
g. Special Processing Volume 1
h. Special Processing Volume 2
i. Special Processing Volume 3
j. Special Processing Volume 4
M&I will provide the Customer with two (2) complete sets of user
documentation manuals at no charge.
2. The on-line system will be available for use Monday through Saturday
and Sunday, 6 a.m.- 6 p.m., CDT, CST. On-line availability for Sunday
may vary due to M&I's requirement to perform routine maintenance to the
system.
1-A
EXHIBIT A
SERVICES
PAGE 2
3. M&I shall maintain a customer support center as part of their services
to the Customer. The support center will maintain a toll free (800)
number and be staffed from 8 a.m. to 5 p.m., CST, CDT, Monday through
Friday excluding national holidays.
4. M&I shall perform a conversion from the Customer's current system as
defined in the M&I Conversion Manual, and training will be completed at
the Customer's site as further outlined in said manual.
5. The number of authorized copies of TrustDesk(TM) software included in
this Agreement is set by the Customer through written notification to
their designated M&I product support representative. Customer may
substitute personal computers (workstations) on which TrustDesk(TM)
software is used however, the total number of copies cannot exceed the
number authorized above. The number of authorized copies of
TrustDesk(TM) software included in this Agreement is seventy (70).
Additional copies can be authorized by subsequent written notification
to your M&I product support representative.
M&I shall provide Customer with up to 24 hours of phone support in the
installation of TrustDesk(TM) software on Customer's workstations. Any
additional time requested by the Customer will be billed at M&I's then-
current programming rates plus travel and living expenses if any, for
on-site support.
6. Customer will have access to M&I's CSF formatted statements. Any
modifications to these statements would require custom programming and
result in additional charges. Any technical assistance required from M&I
in obtaining, modifying, or configuring printers would be billed at
standard programming rates (Exhibit B). The following statement types
are available to the Customer:
. Employee Benefit . Income & Principal Cash
. Graphical Asset . Landscape Single Cash
. Graphical Income & Principal . Single Cash
. Investment Model
Any additional CSF statements would be available at additional cost.
Printing of CSF statements at Customer site is per M&I print
specifications. Printing by M&I is available at an additional cost.
2-A
EXHIBIT A
SERVICES
PAGE 3
7. Customer will provide the following resources during the conversion
process:
Customer will maintain required staffing levels during the conversion
process to achieve all conversion objectives as stated in the conversion
project plan.
Customer will identify and assign an existing staff manager as their
conversion project manager. Customer understands the duties and
responsibilities of their project manager are critical to the overall
conversion effort and will provide the time required to successfully
address the stated duties and responsibilities. Customer will use its
best efforts to ensure the project manager assignment does not change
during the conversion process.
Customer's conversion project manager will develop on internal
procedures manual available to Customers' staff no later than two weeks
prior to conversion date. M&I will assist customer by providing a
procedures manual template.
3-A
EXHIBIT B
CHARGES
The Customer's total charges for the Services proposed will consist of:
1. Processing Charges.
M&I Trust Service Fees as outlined in Exhibit B-1.
2. Programming Rates. (Based on then-current rates--$120 per
hour 1997 rate)
M&I offers the Customer programming services based on a
time-and-material basis plus reasonable travel and living
expenses if on-site meetings are required. Any programming
commitments must be mutually agreed upon for scope and
completion time frames.
3. Product Support Rates. (Based on then-current rates--$1,000
per day 1997 rate)
M&I offers the Customer optional training/consulting services.
These are based on a time-and-material basis plus reasonable
travel and living expenses. The rate is based on an 8-hour day
(hours in excess of 8 hours are billed at $125 per hour)
including travel time to/from Customer.
4. Communication Charges.
M&I uses third-party suppliers for telecommunication services.
An estimate of these charges is outlined in Exhibit C.
5. Conversion Charges.
a. Automated file conversion standard items (master files:
account, security, holdings, name/address, remittance,
memos, tax information, pension payment, and cash) as
identified in the M&I Conversion Manual.
Reasonable programmer and product support personnel travel
and living expenses for conversion trips.
Conversion support as identified in the M&I Conversion
manual.
1-B
EXHIBIT B
CHARGES
PAGE 2
M&I will develop a detailed Conversion and Training Calendar for the
customer outlining the support required for:
. Definition and review
. Training, including TrustDesk(TM)
. Conversion week
. Follow-up visit
. Not to exceed 40 man days
Conversion Charge $35,000. Payable upon execution of this agreement,
plus travel and living expenses incurred by M&I and invoiced to the
Customer.
b. Optional conversion items (as identified in the M&I Conversion Manual,
Section III, Optional Tax Reporting, Check Reconcilement, Performance
Measurement, Additional Exception Reporting) as required by Customer.
. M&I programming at rates shown plus reasonable travel and living
expenses.
. Training billed at standard M&I product support rates shown plus
reasonable travel and living expenses.
. M&I will convert Customer's performance measurement data based on
the specifications as designated in Dan Winkler's letter dated
December 31, 1996. Customer must provide the data in the stated
formats in order to automatically convert the data. All procedures
must be followed and results must be verified by Customer upon
conversion. Conversion charge will be $20,000.
. M&I will bridge Customer's 1099 files to CLR Fast-Tax.
Conversion charge of $4,800 will be waived.
c. Hardware/Software Consulting (including but not limited to
TrustDesk(TM) software support, Local Area Network (LAN) support,
personal computer support, and mainframe/terminal support). Any time
spent by M&I as requested by the Customer will be billed at M&I's
standard programming rates plus expenses.
2-B
EXHIBIT B-1
TRUST SERVICE FEES
A. M&I is offering the Customer a "structured price" in determining their
annual charge.
The annual fee per account is $80.
The annual fee per low-activity accounts is $40.
Estimated annual cost based on (1,275) accounts = $102,000.
=======
Estimated annual cost based on (25) low-activity accounts = $1,000.
=====
Low-activity accounts have less than 36 transactions per year (not
including cash management) and no more than semi-annual statements.
The number of open accounts processed (including house accounts, fund
accounts, combined accounts, etc.) will be counted monthly to determine the
appropriate processing fee. The fee will be billed monthly. M&I is entitled
to an annual price increase not to exceed CPI-U (Consumer Price Index
Urban). The total of such increase in any given one (1) year period shall
not exceed five percent (5%) for the term of this Agreement.
1. Any price increase will take effect on January 1 each year starting on
January 1, 1999.
2. The minimum annual charge for Trust Services is $102,000.
B. M&I Data Services, a division of the Marshall & Ilsley Corporation, a
Wisconsin corporation ("M&I"), reserves the right to charge separately for
new optional services added to their Trust Service after the customer's
Conversion Date November 28, 1997. The Bryn Mawr Trust Company will be
fully operational on the M&I Trust System on the morning of December 1,
1997, if Bryn Mawr Trust Company meets all of their conversion requirements
as stated in the conversion document approved by the Bryn Mawr Trust
Company.
C. M&I Data Services, a division of the Marshall & Ilsley Corporation, a
Wisconsin corporation ("M&I"), uses several outside vendors (pricing
service, communications, corporate notification services, etc.) in
providing their Trust Services. Any pass-through charges or price increases
from these services or any new optional services added by M&I will be
passed through to the Customer based on their effective date to M&I.
3-B
EXHIBIT B-1
TRUST SERVICE FEES
PAGE 2
D. M&I Data Services, a division of the Marshall & Ilsley Corporation, a
Wisconsin corporation ("M&I"), has included daily product support personnel
time for the Customer based on the schedule shown below. Any hours required
by the Customer in excess of this will be billed at M&I's standard product
support rate of $125 per hour.
Product Support Hours Schedule
------------------------------
Contract Year Support Hours
------------- -------------
1 300
2 250
3 and up 250
Customer Support Guidelines (for items included in annual support hours):
-----------------------------------------------------------------------
Questions related to standard system functions and their usage as noted in
the M&I Trust Services User Documentation or any processing issues.
Billable items at standard product support rates.
------------------------------------------------
Questions related to the following:
Trust business/industry
Consultative advice
Procedures; i.e., how to set up, change
Trust Policies and Procedures manual assistance
Equipment setup, changes
Statement customizing
Report writers designed
4-B
EXHIBIT C
COMMUNICATION COST ESTIMATE
Monthly Installation
Charge Purchase Charge
------- -------- ------------
Charge for 56 KB Circuit and $1,000 $5,000 $2,350
Modems $65
Line circuit and modems selected by M&I.
1-C
EXHIBIT D
TRUST SERVICE FEES
The following charges are not included in Customer's "Structured Price" and are
applicable only if requested by Customer.
A. Vendor pass-through charges:
. Corporate action notification $1.95 per account/per year
$8,250 maximum per
year/charged annually
. CMO factor service $1.56 per month per CMO
B. M&I Data Services, a division of the Marshall & Ilsley Corporation, a
Wisconsin corporation ("M&I"), offers services not included in the annual
fee to the Customer. The services not included are:
. TrustWeb $3,000 start-up fee
- 0-1,000 Acct. on the M&I Trust System $2,000 per year
- 1,001-2,000 Accts. on the M&I Trust System $4,000 per year
- 2,001-3,000 Accts. on the M&I Trust System $6,000 per year
- 3,001-4,000 Accts. on the M&I Trust System $8,000 per year
- 4,001-5,000 Accts. on the M&I Trust System $10,000 per year
- 5,001 Accts. + on the M&I Trust System $12,000 per year
. STAR View (on-line report viewing) $500 start-up fee
$100 base fee per month
$100 training fee per
video
- Load Fee .0033 per page
- Disk Storage No Charge
- Tape Storage .000008 per page per day
- Optical Storage:
7 Years .007 per page
10 Years .008 per page
15 Years .009 per page
20 Years .01 per page
Statement Viewing .01 per statement page
loaded to optical
. Report printing at M&I $1.90 per 1,000 lines
. TrustReport Statement Print Destination
Charge $2,200 per occurrence
- TrustReport Statement Print at M&I .13 per page
. Courier Costs At cost
. Forms Cost, plus 15 percent
. Client Terminal Access Setup $90 each
Monthly $65 each
. Loan System Interface Billed by M&I loan area
1-D
EXHIBIT D
TRUST SERVICE FEES
(PAGE 2)
. ACH (charges from ACH System) $.07 per transaction
. M&I Workshops $75 per attendee per class
. Documentation (after initial copies) $500 per set
. Deconversion Tapes (M&I format) $2,000 per tape
Plus any programming or product
support time at the M&I rates
shown in Exhibit B (Charges)
. Post-deconversion On-line Access $2,000 per month base fee
for up to three months,
plus applicable usage
charges and
miscellaneous charges
. Tape/Transmission Handling $38/tape and
$10.50/transmission
. Additional Copies of TrustDesk(TM) $1,500 per copy plus,
Software $450 per year
maintenance on each
additional copy
C. The Customer has the option to add an affiliate bank for $200 per bank per
month plus the standard account charge shown in item B-1.A.
2-D