1
EXHIBIT 10.5
DATA PROCESSING SERVICES AGREEMENT
THIS DATA PROCESSING SERVICES AGREEMENT is made as of this 1st day of
June 1996 (the "Agreement") by and between M&I Data Services, a division of the
Xxxxxxxx & Xxxxxx Corporation, a Wisconsin corporation ("M&I") and First
National Bank of Tampa, a Florida corporation, together with its subsidiaries
and affiliates (collectively referred to as the "Customer").
RECITALS
WHEREAS, M&I provides data processing services to customers located
across the country; and
WHEREAS, M&I desires to provide 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. M&I shall provide Customer with the data processing
services requested by Customer utilizing the version of the banking 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 the User Manuals, copies of which will be
provided, or made available to Customer. Customer shall purchase the data
processing services indicated on Exhibit A from M&I. 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, as modified from time to time.
2. FEES AND TAXES. Customer agrees to pay for the Services
received hereunder as follows:
a. Amount of Fees. Commencing on the Agreement Date and
on the first day of each month thereafter through the end of the term of this
Agreement, Customer shall pay M&I a monthly fee of three thousand dollars
($3,000) per month (the "Fixed Monthly Fee") for the Services described on
Exhibit A. For Services requested by Customer in addition to those described on
Exhibit A, Customer shall pay M&I in accordance with M&I's then-current
standard published prices. The Fixed Monthly Fee will be adjusted in accordance
with the provision of Exhibit B. Customer also agrees to pay all communication
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"). The
M&I standard published prices as of the date of this Agreement are set forth on
the fee schedule attached as Exhibit C.
1
2
b. Additional Charges. In addition to the charges
described above or set forth in Exhibit C, 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.
c. Terms of Payment. Customer shall pay all amounts due
hereunder within ten (10) days of the date such amounts are invoiced to
Customer. To effect the payment, Customer hereby authorizes M&I to initiate
debit entries from and, if necessary, initiate credit entries and adjustments
to Customer's account at the depository designated in the ACH Authorization
Agreement. Customer shall authorize, on the attached ACH Authorization
Agreement, debits from and credits to its account for payment for Services
received under the Agreement. The Customer shall also pay any collection fees
and reasonable attorneys' fees incurred by M&I in collecting payment of the
charges and any other amounts for which Customer is liable under the terms and
conditions of this Agreement.
d. Modification of Terms and Pricing. If Customer is in
default and M&I elects to continue to perform the Services, or if the
Customer's tangible capital or reserve requirements computed in accordance with
applicable federal regulations for itself or any of its affiliates receiving
Services hereunder are less than the required regulatory minimums, 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 M&I's then-current standard
published prices, paid in advance as determined by M&I. At M&I's option, such
Services shall be provided on a month-to-month basis.
3. TERM.
a. Initial Term. This Agreement shall be effective upon
execution by both parties. The term of this Agreement shall continue for a
period of eighty-four (84) months from the Agreement Date.
b. Renewal Obligations. During any renewal term, or for
any 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, except that all charges for Services shall be computed using
M&I's then-current standard published prices paid in advance as determined by
M&I. 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 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 AND OWNERSHIP. Both parties will, to the
extent and in accordance with their policies used to protect their own
information of similar
2
3
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 may reproduce and distribute any or all of M&I's
documentation, including User Manuals, solely for its own internal use.
Customer recognizes, however, that such documentation may be copyrighted,
trademarked, patented, or otherwise protected by M&I. Customer will not
undertake to reproduce for distribution or distribute such documentation to any
other third party. Any modifications made to such documentation by Customer for
the purpose of customization are acknowledged to be solely at the risk of
Customer, and M&I shall not be liable to Customer for any inaccuracies arising
therefrom. The distribution of modified documentation is subject to the same
restrictions and shall further contain an acknowledgement of M&I's copyright
and other protected proprietary interests in such documentation.
6. PROGRAMMING. M&I reserves the right to determine the
programming (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 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 shall not be responsible for the reliability monitoring or continued
availability of the communications lines used by Customer in accessing the
Services.
8. SUPPLIES. Customer shall pay for all supplies used in
connection with 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, enhance, update, 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 Service. M&I may, at any time, withdraw
any of the Services upon providing one hundred twenty (120) days' prior written
notice to Customer. M&I 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.
3
4
10. DISASTER RECOVERY. M&I maintains, and shall continue to
maintain 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 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 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 the
Customer shall fail to perform any of its other covenants or obligations under
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. The defaulting party shall have ten (10) days
from the date of receipt of notice from the nondefaulting party of 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 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 (1) terminate this Agreement;
(2) terminate access to its central processing unit by the Customer; and (3)
declare all amounts payable under this Agreement to be immediately due and
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: (1) terminate this Agreement and (2) file suit or otherwise
obtain payment of an aggregate amount of the 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 equitable remedies, including,
without limitation, specific performance and 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 that 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 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 Customer
4
5
is current in the payment of all amounts due M&I as reflected on M&I's last
invoice to Customer. M&I will only exercise such remedy after providing
Customer with sixty (60) days' prior written notice.
13. TERMINATION.
a. End of Initial Term. This Agreement shall
automatically be extended at the end of the initial eighty-four (84) month term
for an additional eighteen (18) 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 automatically extended for an additional one (1) month on
each monthly anniversary date so that the term shall always be not less than
one (1) month less than eighteen (18) months, unless either party gives written
notice to the other party of intent to terminate, in which event the automatic
monthly 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 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 12
hereof.
d. Termination by Customer. Customer may terminate this
Agreement at any time, and without cause, by giving M&I at least 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 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 Customer.
a. Notice Requirements. The Customer shall be
responsible for complying with all regulatory notice provisions to any
applicable governmental agency, which shall include providing timely and
adequate notice to the Chief Examiner of the Federal Home Loan Bank Board, the
Office of Thrift Supervision, the Office of the Comptroller of the Currency,
The Federal Deposit Insurance Corporation, the Federal Reserve Board, or their
successors, as applicable (collectively, the "Federal Agency"), 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 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, including (without limitation) the
Federal Agency. The Director of Examinations of the Federal Agency or his
designated representative
5
6
shall have the right to ask for and to receive directly from 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. Throughout the term of the Agreement,
M&I shall maintain fidelity bond coverage for M&I and its employees.
d. Notice of Changes. Customer shall give to the
Director of Examinations of the Federal Agency at least thirty (30) days'
notice of the termination of this Agreement or of any material changes in the
Services to be provided hereunder.
e. Insurance. Throughout the term of this Agreement,
M&I shall maintain insurance coverage (or shall be self-insured) 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.
f. Financial Information. Customer agrees to provide
M&I with a copy of the call report filed with the Federal Agency simultaneously
with its filing with the Federal Agency, and to provide such additional
financial information as to its creditors or others as M&I may reasonably
request.
15. TRANSPORTATION AND/OR TRANSMISSION OF DATA. The
responsibility and expense for transportation and/or transmission of and risk
of loss of data and media to and from M&I's datacenters 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.
a. General. M&I agrees to perform the Services in a
commercially reasonable 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 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,
6
7
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 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 including microfilm images of items being transported to M&I, for at
least ten (10) business days' backup on magnetic tape or other electronic media
where transactions are being transmitted 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 center and related internal controls to be conducted annually
by its independent auditors. M&I shall provide Customer, upon request, at its
then current charge, one copy of the report resulting from such review.
e. Regulatory Compliance. Customer is responsible for
determining that 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 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 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.
17. OWNERSHIP OF DATA. Customer is the owner of all of its data
supplied by Customer to M&I for processing hereunder. Customer acknowledges
that it has no
7
8
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 Reconversion 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:
a. Capability of Computer Systems and Software. M&I's
computer 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 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 hereunder, using all computer software required for that purpose.
d. Organization and Approvals. M&I is a validly
organized 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 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
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 which by the exercise of reasonable
diligence it is unable to prevent, whether of the class of causes hereinbefore
enumerated or not.
8
9
20. IRS FILING. Customer has complied with all laws, regulations,
procedures, and requirements in attempting to secure correct tax identification
numbers (TINs) for and agrees to attest to this compliance by an affidavit
provided annually. Customer authorizes M&I to act as Customer's agent and sign
on Customer's behalf the Affidavit required by the Internal Revenue 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.
21. CONTRACT BUYOUT.
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 ninety percent (90%) of the total estimated
remaining unpaid monthly processing fees if termination occurs during months
1-24 of the Agreement, and forty percent (40%) if termination occurs
thereafter. 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 Customer (as
described in Section 11 of this Agreement).
22. USE OF THE SERVICES. (a) Customer assumes exclusive
responsibility for the consequences of any instructions 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 or otherwise provide, directly or
indirectly, any of the Services 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.
9
10
23. 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 Schedules
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 to any company that is directly or indirectly (i) in control of
M&I, (ii) under the control of M&I, or (iii) 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
10
11
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.
M&I DATA SERVICES, A DIVISION OF THE
XXXXXXXX & XXXXXX CORPORATION
("M&I")
By: /s/ Xxxxxxx X. Xxx
------------------------------------------
Name: Xxxxxxx X. Xxx
Title: President, Outsourcing Business Group
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
FIRST NATIONAL BANK OF TAMPA
("CUSTOMER")
By: /s/ T. Xxxxx Xxxxxxx Xx.
------------------------------------------
Name: T. Xxxxx Xxxxxxx Xx.
------------------------------------------
Title: Executive Vice President
------------------------------------------
11
