SERVICES AGREEMENT
BISYS, INC. Xxxxxxxx Xx. XX-0000-00-00
00 Xxxxxxxx Xxxxx -------------
Xxxxxxx, Xxxxx 00000-0000 Price List No. 07-96
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Client First Lehigh Bank
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Address 0000 Xxxx Xxxx
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City Allentown State Pennsylvania Zip Code 18104
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1. SCOPE OF AGREEMENT
BISYS. Inc. ("BISYS") shall provide Client, in accordance with this Agreement,
the services selected by Client from BISYS' then applicable Standard Services
Price List and/or Special Services Price List (collectively, the "Price Lists")
(collectively, the "Services"). BISYS shall provide the reports listed on the
Standard Reports List and Special Reports List as applicable to the Services
selected by Client. The current Price Lists are attached hereto and made a part
hereof.
2. TERM OF AGREEMENT
A. The initial term of this Agreement shall commence January 1, 1997 (the
"Initiation Date") and end 60 full calendar months thereafter (the "Initial
Period").
B. The Agreement shall automatically continue after the Initial Period for
subsequent consecutive terms of three years each unless and until it is
terminated by either party upon written notice to the other given at least
180 days prior to the end of the Initial Period or any additional three year
period.
C. If Client has given BISYS notice pursuant to Paragraph 2(B) and Client
intends to deconvert from the BISYS data processing system ("BISYS System").
Client may, upon written notice to BISYS given at any time during the final
120 days of this Agreement (as determined in accordance with 2(B) above) or
any extension hereof pursuant to this Paragraph 2(C), extend the termination
date to the date indicated in such notice, which date shall not be, in any
event, less than 120 days after the date of such notice. Commencing at the
end of the Initial Period or any renewal period (as applicable), Client
shall pay for Services at the prices set forth in the then current BISYS
Price Lists notwithstanding the giving or extension notice.
D. Continuing obligations under this Agreement including, without limitation,
those relating co "BISYS Products" (defined in Paragraph 9(A));
"Confidential Information" (defined in Paragraph 9(F)) and "Client Files"
(defined in Paragraph 7(A)), shall survive any termination.
3. CHARGES
A. Each month commencing Initiation Date, whether or not Client actually uses
any Services during such month, Client shall pay a minimum monthly charge
equal to the greater of (i) $9,400; (ii) BISYS' charges for the Services
actually used by Client during such month; (iii) 80% of the charges invoiced
to Client during the immediately preceding month; or (iv) 80% of the charges
invoiced to Client for the month immediately preceding any deconversion by
Client if Client deconverts from the BISYS System.
B. The initial charges for the Services are specified in the Price Lists, and
shall be recorded by the BISYS System or by any other means used by BISYS of
determining Client's usage. The charges for the Services listed on the
Standard Services Price List as of the date hereof will not be changed by
BISYS until the expiration of the first year following Initiation Date.
Thereafter, during the remaining term of the Initial Period, the charges for
the Services listed on the Standard Services Price List may be changed by
BISYS at any time and from time to time upon at least 90 days prior written
notice to Client. During the Initial Period, the charges for the Services
listed on the Special Services Price List as of the date hereof may be
changed by BISYS at any time after the date hereof upon at least 90 days
prior written notice to Client. After the Initial Period, the charges for
the Services listed on the Price Lists shall automatically, and without
notice, be changed to BISYS' standard (nondiscounted) list prices then in
effect for the respective Services: such prices may, thereafter, be changed
by BISYS, at any time and from time to time, upon at least 90 days prior
written notice to Client.
C. There shall be added to all charges for the Services furnished Client
hereunder amounts equal to any applicable taxes levied or based on such
Services, exclusive of taxes based on BISYS' income.
D. No later than the 5th day of each calendar month, BISYS shall invoice (the
"Monthly Invoice") Client: (i) for all Services projected to be used by
Client during that month (the "Billing Month") which charge will be based
upon either actual usage and number of accounts during the month prior to
the Billing Month or the minimum charge pursuant to Paragraph 3(A); (ii) an
amount equal to 100% of the recurring pass through charges (e.g.
communication charges) actually utilized by Client during the prior month as
the estimated pass through charges for the Billing Month; (iii) adjustments
(debits/credits) to the prior month's estimated charges set forth in (i) and
(ii) above and; (iv) all other charges incurred by Client during the prior
month. Client agrees co pay all amounts set forth in the Monthly Invoice by
automatic debit by BISYS on the last business day of the Billing Month from
a Client bank account established for this purpose (the "Payment Account").
Client agrees to execute any and all required documentation to enable BISYS
to perform such automatic debiting of the Payment Account. If Client fails
to pay any amounts due under this Agreement, Client shall, upon demand, pay
interest at the rate of 1-1/2% per month, but in no event more than the
highest interest rate allowable, on such delinquent amounts from their due
date until the date of payment. Client agrees to reimburse BISYS for any and
all expenses BISYS may incur, including reasonable attorney fees, in taking
action to collect any amounts due BISYS hereunder. All amounts due must be
paid prior to Client's deconversion from the BISYS System.
4. AVAILABILITY OF THE SERVICES
A. Hours for accessing Services on an on-line basis ("On-Line Hours") at the
BISYS data center providing Services to Client ("Data Center") are 7:00 A.M.
to 9:00 P.M. Monday through Friday and 7:00 A.M. to 5:00 P.M. Saturday (Data
Center time) exclusive of BISYS holidays (New Years Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day). A
particular Service may also be available at other than On-Line Hours; in
which event Client may, at its option and subject to any additional charges
therefor, use that Service at such other times.
B. BISYS will make every reasonable effort to have the Services available
during the On-Line Hours. However, BISYS cannot and does not guarantee such
availability. Accordingly, Client's remedy and BISYS' sole liability to
Client or any third party for claims, notwithstanding the form of such
claims (e.g., contract, negligence or otherwise), arising out of (i) the
unavailability of the BISYS System or (ii) the interruption in or delay of
the Services provided or to be provided by BISYS hereunder, shall be for
BISYS to use all reasonable efforts to make the BISYS System available
and/or to resume the Services as promptly as reasonably practicable.
C. Client shall, at it's expense, be responsible for delivering and
transmitting to and from Client's offices, the offices of the applicable
regulatory authorities and any other location authorized by Client, and the
Data Center all data and information necessary for BISYS to furnish the
Services to Client.
5. USE Of THE SERVICES
A. Client is exclusively responsible for the consequences of its own actions;
for any instructions it gives BISYS; for its failure to access the Services
in the manner prescribed by BISYS. and for its failure to supply accurate
input information. Client is responsible for auditing, balancing, verifying
the correctness of calculation routines (such as interest and service
charges) and reconciling any out-of-balance condition, and for notifying
BISYS of any errors in the foregoing within three business days after
receipt of the incorrect information. Client's remedy and BISYS' sole
liability to Client or any third party for any claims, notwithstanding the
form of such claims (e.g., contract, negligence or otherwise), arising out
of errors of omissions in the Services provided or to be provided by BISYS
hereunder and caused by BISYS shall be for BISYS to furnish the correct
report and/or to correct the applicable Client Files, provided that Client
promptly advises BISYS thereof.
B. Client shall use the Services in accordance with such reasonable
instructions as may be established by BISYS from time to rime as set forth
in any written materials furnished by BISYS to Client.
C. Except as otherwise permitted by BISYS, Client will use the Services only
for its own internal and proper business purposes and will not sell or
otherwise provide, directly or indirectly, any of the Services or any
portion thereof to any third party.
D. Client shall not make any alteration, change or modification to any of the
computer programs, data bases and/or BISYS supported files used by BISYS in
connection with providing the Services to Client hereunder, without BISYS'
prior written consent in each instance.
E. BISYS shall give Client written notice of any BISYS system change which
materially affects Client. Nothing herein shall preclude or limit BISYS'
ability to make changes to its data processing system.
6. COMMUNICATION LINES AND EQUIPMENT.
A. BISYS shall order, on Client's behalf and with Client's approval, the
installation of appropriate telephone lines and communications equipment to
enable Client to access the Services. Client shall pay all charges relating
to the installation and use of such telephone lines and communications
equipment.
B. BISYS shall not be responsible for the reliability, or continued
availability, of telephone lines and communications equipment used by Client
in accessing the Services.
7. FILE SECURITY AND RETENTION.
A. Any Client data bases and files or other information provided by Client to
BISYS for use with the Services (the "Client Files") shall remain the
confidential property of Client. BISYS will provide reasonable security
provisions to insure that third parties do not have access to the Client
Files. BISYS reserves the right to issue and change regulations and
procedures from time to time to improve file security. BISYS will instruct
its employees having access to the Client files to keep the same
confidential by using the same care and discretion that BISYS uses with
respect to its own confidential property.
B. BISYS will take reasonable precautions to prevent the loss of, or alteration
to, Client Files, but BISYS cannot guarantee against any such loss or
alteration. Accordingly, Client will, to the extent deemed necessary by
Client, keep copies of all source documents of information delivered to
BISYS and will maintain a procedure external to the BISYS System for the
reconstruction of lost or altered Client Files. In connection with the
foregoing, it is understood that Client shall assume and be responsible for
risk of loss and/or damage to documents and records while they are in
transit to and from the Data Center.
C. During the term of this Agreement, BISYS will retain the Client Files in
accordance with, and to the extent provided by BISYS' then prevailing
records retention policies for the Services, which policies will be
consistent with guidelines covering the Services established by appropriate
regulatory authorities. BISYS will, upon the expiration of any retention
period for Client Files, dispose of Client Files in any manner deemed
appropriate by BISYS unless Client, prior to such disposal, furnishes to
BISYS written instructions for the disposition of such Client Files at
Client's expense. Client shall pay for the provision of Client Files to
Client at BISYS' standard rates for such services and BISYS shall provide
such Client Files provided that BISYS has been paid for all Services
provided hereunder through the date such requested Client Files are returned
to Client.
D. BISYS has a written Disaster Recovery Plan establishing emergency
procedures, including off-premises back-up facility. In connection
therewith, BISYS has prepared a Disaster Recovery Manual. The Disaster
Recovery Plan and Disaster Recovery Manual are available at the Data Center
for examination by bank auditors and examiners and, as they may be modified
from time to time, will remain in existence during the term of this
Agreement. BISYS shall provide Client, upon written request, with
information necessary for Client to develop a disaster contingency plan
which will work in concert with BISYS' Disaster Recovery Plan.
8. DUTIES UPON TERMINATION; RETURN OF RECORDS.
A. Upon the termination of this Agreement for any reason, BISYS will dispose of
all Client Files still in the BISYS System in any manner deemed appropriate
by BISYS unless Client, not later than 30 days after such termination,
furnishes to BISYS written instructions for the disposition of such Client
Files at Client's expense as set forth in Paragraph 8(B).
B. At Client's request as set forth in Paragraph 8(A), BISYS shall deliver to
Client all of the Client Files then retained by BISYS including file layouts
and their descriptions in BISYS format and shall provide in accordance with
BISYS deconversion policies, reasonable and necessary assistance with the
deconversion from the BISYS System to a non-BISYS system ("Deconversion").
Client shall pay BISYS for Deconversion assistance in accordance with BISYS'
then current Deconversion rate schedule. Payment for Deconversion together
with all other payments which are due, and which will become due pursuant to
the provisions of this Agreement shall be paid to BISYS prior to delivery of
such Client Files.
C. Client Files returned to Client shall be in a standard BISYS machine
readable format.
9. OWNERSHIP, USE AND CONFIDENTIALITY; BISYS PRODUCTS AND CONFIDENTIAL
INFORMATION.
A. All computer programs and related documentation made available, directly or
indirectly, by BISYS to Client as part of the Services (the "BISYS
Products") are the exclusive and confidential property of BISYS or the third
parties from whom BISYS has secured the right to use such computer programs
and documentation.
B. A personal, non-exclusive, non-transferable right and license is being
granted to Client to use, during the term of this Agreement, any
applications software programs included in the BISYS Products (the
"Application Programs") which are delivered to Client as part of the
Services solely for Client's own business usage. Client shall not have any
interest in the Applications Programs except for this limited license.
C. Client shall receive all improvements, enhancements, modifications and
updates to any Applications Programs which are delivered to Client as part
of the Services if, and as, made available by BISYS to its clients
generally. All such improvements, enhancements, modifications and updates
shall be delivered to Client in the form of a computer media, which media
shall be provided to Client by BISYS and shall be installed by Client. If
Client fails to install any such media within 45 days of its receipt from
BISYS, BISYS shall have no further obligation to provide Client with
improvements, enhancements, modifications or updates to such Application
Programs.
D. Client acknowledges that it shall be deemed a sublicensee of BISYS for any
systems software programs included in the BISYS Products (the "Systems
Programs") which are delivered to Client as part of the Services. Client
accepts a sublicense from BISYS of the Systems Programs on a personal,
non-exclusive, non-transferable basis with the right to use, during the term
of this Agreement, such Systems Programs solely in connection with the
Services.
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E. Client shall not copy, in whole or in part, any BISYS Products or related
documentation, whether in the form of computer media, printed or in any
other form. Client shall not make any alteration, change or modification to
any BISYS Products.
F. Client shall treat as confidential and will not disclose or otherwise make
available any of the BISYS Products or any trade secrets, processes,
proprietary data, information or documentation related thereto including,
without limitation, any flow charts. logic diagram or source code
(collectively the "Confidential Information"), in any form, to any person
other than employees of Client. Client will instruct its employees who have
access to the BISYS Products and the Confidential Information to keep the
same confidential by using the same care and discretion that Client uses
with respect to its own confidential property and trade secrets. Upon the
termination of this Agreement for any reason. Client shall return to BISYS
any and all copies of the BISYS Products and the Confidential Information
which are in its possession.
10. GOVERNMENTAL AGENCIES.
A. Client shall provide all required notices to the appropriate regulatory
authorities concerning the initiation or termination of this Agreement, or
of any substantial changes in the Services being provided to Client. BISYS
agrees that any and all Client Files maintained by it for the Client
pursuant to this Agreement shall be available for inspection by the
appropriate regulatory authorities and Client's internal auditors and
independent public accountants, upon prior written notice to BISYS. All
costs incurred by BISYS in the preparation of data for inspection,
examination or audit will be charged to Client at BISYS' then standard rates
for such services.
B. BISYS shall provide annually to the appropriate regulatory authorities any
Third Party Review Reports prepared by independent public accountants with
respect to the Services performed by BISYS at the Data Center and copies of
BISYS' audited financial statements. By entering into this Agreement, BISYS
agrees that it extends to the Office of Thrift Supervision ("OTS") the same
authority and responsibility (as applicable to Client) provided to the other
regulatory agencies pursuant to the Bank Service Corporation Act. 12 U.S.C.
1867(C) relating to services performed by contract or otherwise.
C. If after the date hereof any modifications to the Services shall be required
by law or by any governmental regulatory authority. BISYS shall, except to
the extent such changes may be beyond the capability of the BISYS System to
implement, conform the Services to be in compliance with such modified laws
or governmental regulations. BISYS may, at its discretion, pass on, in whole
or in part, an equitable basis to all users of the Services (including
Client) affected by any such modification the actual costs incurred by BISYS
in making any such modification to the Services.
11. WARRANTY.
A. BISYS represents and warrants that the Services will conform materially to
their design specifications and user documentation which may be changed from
time to time. This warranty shall not extend to any of the computer
programs, data bases and/or BISYS supported files used by BISYS in
connection with providing the Services to Client hereunder which have been
altered, changed or modified in any way. without BISYS' prior written
consent in each instance.
B. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. LIMITATION OF LIABILITY.
A. The remedies specified in this Agreement constitute Client's sole and
exclusive remedies in the event of any alleged defaults by BISYS under this
Agreement. BISYS' sole liability, if any, for damages (monetary or
otherwise) resulting from claims made by Client or any third party arising
from or related to any and all causes not covered by the foregoing remedies
shall be limited to the lesser of (i) the amount of actual damages incurred
by Client or (ii) an amount which shall not exceed the charges paid by
Client during the six (6) month period immediately preceding the event from
which such liability arose for the Services performed which gave rise to the
claim.
B. IN NO EVENT WILL BISYS BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHICH CLIENT MAY INCUR OR EXPERIENCE ON ACCOUNT OF
ENTERING INTO OR RELYING ON THIS AGREEMENT, EVEN IF BISYS HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
13. PATENT AND COPYRIGHT INDEMNIFICATION.
BISYS will hold Client harmless and, at its own expense, will defend any action
brought against Client based on a claim that the Services used within the scope
of this Agreement infringe a United States patent or copyright provided Client
notifies BISYS promptly in writing of the claim. BISYS has sole control of the
defense of the action and all negotiations for its settlement or compromise, and
Client cooperates with BISYS in the defense of the action. In the event any of
the Service(s) becomes, or in BISYS' opinion is likely to become, the subject of
a claim of infringement of parent or copyright, BISYS, at its option. may (i)
secure for Client the right to continue using such Service(s), (ii) replace or
modify such Services to make it or them non-infringing, (iii) cease providing
the affected Service(s) or (iv) if none of the foregoing options is commercially
reasonable, in BISYS' opinion, terminate this Agreement. If BISYS exercises its
option hereunder to terminate this Agreement, such termination shall be at no
penalty to BISYS except that BISYS shall provide the Deconversion assistance
described in Paragraph 8(B) at no charge to Client.
14. INSURANCE.
BISYS shall maintain, during the term of this Agreement, $10,000,000 of coverage
under a Blanket Crime Policy covering fraudulent and dishonest acts committed by
its employees for which it is legally responsible. BISYS shall maintain, on its
own behalf, insurance coverage for loss from fire, disaster, or other causes
contributing to interruption of normal services. Client, at its own expense,
will maintain all insurance and fidelity bonds required by the applicable
regulatory authorities.
15. DEFAULT; REMEDIES UPON DEFAULT.
A. Any of the following events will constitute an "Event of Default" under the
Agreement: (i) non-payment of any amounts due hereunder to BISYS by Client:
(ii) nonperformance of any of Client's or BISYS' other material obligations
hereunder; (iii) if any representation or warranty of Client or BISYS is
materially breached; (iv) if Client or BISYS files a petition for bankruptcy
or becomes the subject of an involuntary bankruptcy petition which is not
vacated within 60 days of filing, or becomes insolvent: or (v) if any
substantial part of Client's or BISYS' property becomes subject to any levy.
seizure, assignment, application or sale for or by any creditor or
governmental agency.
B. Upon occurrence of an Event of Default under the Agreement, the
non-defaulting party may, at its option, terminate this Agreement provided
at least 30 days (or longer period as may be required by the applicable
regulatory authorities) prior written notice has been given to the other and
such default has not been cured within such period. Upon such termination by
BISYS, BISYS may declare all amounts due and to become due hereunder
immediately due and payable. The remedies contained in this Paragraph 15 are
cumulative and in addition to all other rights and remedies available to the
parties under this Agreement or by operation of law or otherwise.
16. FORCE MAJEURE
BISYS shall not be liable or deemed to be in default for any delay or failure to
perform under this Agreement or for interruption of the Services resulting,
directly or indirectly, from any cause beyond BISYS' reasonable control.
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17. GENERAL
A. BISYS shall provide Client upon written request, copies of The BISYS Group,
Inc.'s (BISYS' parent corporation) current audited financial statements.
B. Client acknowledges that it has not been induced to enter into this
Agreement by any representation or warranty not set forth in this Agreement.
This Agreement contains the entire agreement of the parties with respect to
its subject matter and supersedes all existing agreements and all other
oral, written or other communications between them concerning its subject
matter. This Agreement shall not be modified in any way except by a writing
signed by both parties.
C. The failure by either party hereto to insist upon strict performance of any
of the provisions contained herein shall in no way constitute a waiver of
its rights as set forth herein, at law or equity, or a waiver by either
party of any other provisions or subsequent default by the other party in
the performance of or compliance with any of the terms and conditions set
forth herein.
D. This Agreement may not be assigned by either party, in whole or in part,
without the prior written consent of the other which consent shall not be
unreasonably withheld. It shall not be deemed an assignment requiring
consent if the stock of either is sold, or all, or substantially all, of the
assets are sold so long as such sale does not materially negatively affect
the basis of the financial bargain upon which this Agreement is based as of
the date hereof and such sale does not materially negatively affect the
provision of the Services hereunder. If there is such a negative impact,
then the sale shall be deemed an assignment requiring consent as set forth
above. This Agreement shall be binding upon and shall inure to the benefit
of BISYS and Client and their respective successors and permitted assigns.
E. If any provision of this Agreement (or any portion thereof) shall be held to
be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remainder of this Agreement shall not in any way be
affected or impaired thereby.
F. The headings in this Agreement are intended for convenience of reference and
shall not affect its interpretation.
G. The individuals executing this Agreement on behalf of BISYS and Client do
each hereby represent and warrant that they are duly authorized by all
necessary action to execute this Agreement on behalf of their respective
principals.
H. Client acknowledges that a breach of any of its obligations under this
Agreement relating to the BISYS Products and/or the Confidential Information
will cause BISYS irreparable injury and damage and therefore may be enjoined
through injunctive proceedings in addition to any other rights or remedies
which may be available to BISYS, at law or in equity and BISYS grants Client
the same rights with respect to a breach of BISYS' obligations relating to
the confidentiality of Client Files.
I. During the term of this Agreement, neither party hereto shall, directly or
indirectly, solicit or encourage to leave, any employee of the other without
prior written consent, which consent shall not be unreasonably withheld.
J. By executing this Agreement, the parties agree to extend the term of any
existing written Additional Services Agreements or authorizations for
specific Services to be coterminous with the term of this Agreement and to
have such agreements be covered by the terms and provisions hereof.
BISYS, INC. FIRST LEHIGH BANK
Agreed to: /s/ X.X. Xxxxxxx Agreed to: /s/ Xxxxxx X. Xxxxxxxx
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(signature-Authorized Officer) (signature-Authorized Representative)
Name: X.X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
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(print or type) (print or type)
Title: President Date: 10/02/97 Title: E.V.P Date: 9/29/97
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(print or type) (print or type)
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THIS AGREEMENT SHALL BECOME EFFECTIVE UPON BEING SIGNED BY AUTHORIZED OFFICERS
OF BISYS AND CLIENT. BISYS' MARKETING REPRESENTATIVES DO NOT HAVE THE
AUTHORITY TO BIND BISYS.
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ADDENDUM TO SERVICES AGREEMENT NO. CH-2081-07-96
SERVICES AGREEMENT DATED AS OF JANUARY 1, 1997
Reference is made to the above Services Agreement between the undersigned (the
"Agreement") to which this Addendum is attached and made a part thereof.
The Agreement is hereby amended and supplemented as follows:
1. Except as expressly amended and supplemented hereby, all terms defined in
the Agreement shall have the same meanings when used herein.
2. Term of Agreement.
2.1 Notwithstanding anything to the contrary contained in Paragraph 2 of
the Agreement, if at any time during the Initial Period, Client is
acquired by or merged into (and is not the surviving entity), a
financial organization which does not have a valid Services Agreement
with BISYS, Client shall have the option to terminate this Agreement
prior to the end of the Initial Period, upon 180 days prior written
notice to BISYS by Client, and such termination shall be effective
provided that:
(a) Client provides written notice of its intention to terminate this
Agreement pursuant to this Paragraph not later than 90 days after
the date following final regulatory approval of the acquisition
or merger by the appropriate regulatory bodies;
(b) The effective date of termination in Client's written notice
shall not be less than 180 days after the date of Client's
notice;
(c) Client shall pay BISYS for all Services provided by BISYS through
the effective termination, including all pass-through charges;
(d) Based on the month during which the effective date of termination
occurs, Client shall pay BISYS the amount set forth on Exhibit B;
(e) Client pays BISYS for all Deconversion assistance in accordance
with Paragraph 8(B) of the Agreement; and
(f) all payments must be made prior to delivery of Client Files.
3. Charges.
3.1 Section 3 of the Agreement is amended by inserting the following new
paragraphs after Paragraph 3(D):
"E. For purposes of this Agreement the following definitions shall
apply:
(1) For purposes of this Agreement, the term "Client Accounts", shall
include, but not be limited to, deposit and loan accounts on the
BISYS System, including, but not limited to Savings
Accounts-Account Base, Time Deposits/Certificates of Deposits
Accounts-Account Base, Transaction Accounts-Account Base
(including DDA, MMDA, NOW, SUPER NOW, Money Market), Line of
Credit
Accounts-Account Base, Mortgage Loans-Account Base, Construction
Loans-On Line History, Commercial Loans-Account Base, Installment
Loans-Account Base, Adjustable Installment Loans, Commercial Loan
Processing, Construction/Commercial Loan Control
Accounts-Construction Loans, Construction/Commercial Loan Control
Accounts-Commercial Loans.
(2) "One Year Period" shall mean each twelve (12) calendar month
period commencing the first day of the first full calendar month
following January 1, 1997 and the indication as to which twelve
(12) month period is indicated will be with the addition of an
ordinal number preceding the term One Year Period, e.g., First
One Year Period, Second One Year Period, etc.
(3) "Exhibit A Services" shall mean the Services identified on
attached Exhibit A (both the Standard Services and Special
Services listed on Exhibit A). The parties agree that included in
the definition of Exhibit A Services are Client usage of any
features associated with the Services listed on the Standard
Services portion of Exhibit A which features are in existence and
available to Client as of the date of this Addendum. Neither
features, nor Services, listed on the Price Lists as of the date
hereof, but not set forth on Exhibit A shall be deemed to be part
of the Exhibit A Services and such other Services and/or features
shall be billed to Client in accordance with the provisions of
Paragraph 3(G) below. The parties also agree that Exhibit A
Services are recurring Services and do not include any
installation charges, training charges, one-time license fees or
any other one-time charges.
F. For all Client usage of Exhibit A Services, Client will pay BISYS
a fixed monthly charge (the "Fixed Monthly Charge"), in accordance
with the following:
(1) During the First One Year Period, the Fixed Monthly Charge will
be $9,400.00.
(2) At the end of each One Year Period, BISYS will determine the
average number of Client Accounts based on the immediately
preceding twelve month period (the "Year End Accounts"). The
Fixed Monthly Charge for the next One Year Period will be
calculated as (x) the number of Year End Accounts, times (y)
$0.50 (the "Per Account Fee"). During the Initial Period, in no
event will the Fixed Monthly Charge be less than $9,400.00.
(3) The Fixed Monthly Charge may be adjusted during a One Year
Period, if Client converts Acquired Accounts (defined below) to
the BISYS System. Commencing on the first day of the third month
following the conversion of the Acquired Accounts, BISYS will add
the number of Acquired Accounts to the most recent number of Year
End Accounts, and the Fixed Monthly Charge will be adjusted as
follows: (x) the then current Fixed Monthly Charge, plus (y) (the
number of Acquired Accounts times the then current Per Account
Fee).
(4) BISYS agrees that the Per Account Fee will not be increased
during the first two One Year Periods, thereafter, the Per
Account Fee may be increased by an amount equal to the lower of
(i) five percent (5%) each year; or (ii) the percentage increase
in the United States Consumer Price index as published by the
Bureau of Labor Statistics, United States Department of Labor
("CPI"), during the twelve month period immediately preceding the
date of increase.
2
(5) During the Initial Period, Client shall receive a ten percent
(10%) discount against the Fixed Monthly Charge set forth on each
Monthly Invoice.
G. In addition to the Fixed Monthly Charge, Client will pay BISYS each
month for:
(1) All Client usage of Services not specifically set forth on
Exhibit A; and
(2) For all pass-through charges.
H. During the Initial Period, Client will be entitled to receive the
following non-cumulative credits in the amounts set forth below to be
applied against the charges for the Services described opposite such
amount:
Service Amount of Credit
------- ----------------
TargetPlus $400.00/per month
BISYS University $1,000.00/per year
3.2 (a) During the Initial Period, BISYS' Conversion Services shall be
provided to Client at no charge for the conversion of any future
financial organization assets acquired by Client ("Acquired
Assets"), provided that the data and files from such future
merged organizations are in machine readable form, readable by
BISYS' computers at the BISYS Center. Client does, however, agree
to pay in full all out-of-pocket conversion related expenses not
included in BISYS' provided standard conversion services,
including but not limited to, data communications, terminal
equipment charges and reasonable travel, lodging and meals
expense.
4. New Products.
4.1 During the Initial Period, Client will be entitled to receive a
fifteen percent (15%) discount on the one-time implementation/
installation charges set forth in the Price Lists for any new Service
selected by Client after June 1, 1997, provided, however, that the
discount is not applicable against the charges associated with any
BISYS electronic banking Service, including, but not limited to, ATM
Debit Card, Home Banking, Total Treasury Manager and Total Access
Banking Services.
4.2 During the Initial Period, if Client elects to utilize any of the
following Services, the monthly recurring charge associated with such
Service will be included in the Fixed monthly charge: Total Financial
Manager Core Package for a Single Station (including Financial System
Manager Accounts), Exception Item Pull, Daily Activity File and
Statement Rendering.
5. Neither BISYS nor Client shall (except to persons acting on behalf of such
party) disclose, and neither party shall permit any of its employees or
other persons who act or acted in its behalf to disclose, any of the terms
and conditions of the Agreement, including without limitation any Addendum
or pricing terms, except as may be required by law.
Except as expressly amended and supplemented hereby, the Agreement shall remain
unchanged and continue to be in full force and effect.
3
This Addendum supersedes and replaces any prior agreement (written or oral) as
to its subject matter. If there is any conflict between the terms and conditions
of this Addendum and the terms and conditions of the Agreement or any prior
addendum to this Agreement, the Terms and Conditions of this Addendum shall
prevail.
BISYS, INC. FIRST LEHIGH BANK
By: /s/ X.X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------- ---------------------------------
Name: X.X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
----------------------- -------------------------------
Title: President Title: Executive V.P.
---------------------- ------------------------------
Date: October 2, 1997 Date: September 22, 1997
----------------------- -------------------------------
-------------------------------------------------------------------------------
THIS ADDENDUM SHALL BECOME EFFECTIVE UPON BEING SIGNED BY AN AUTHORIZED OFFICER
OF BISYS. BISYS' MARKETING REPRESENTATIVES DO NOT HAVE THE AUTHORITY TO BIND
BISYS.
-------------------------------------------------------------------------------
4
FIRST LEHIGH BANK
Exhibit A
SAVINGS AND CERTIFICATES
Savings and CD's Interest Check Processing
Club Processing and Check Production Anniversary Processing
Online Savings Histories TotalPlus Currency Reporting
Online File Maintenance CD Renewal Notices
CD Term History and Penalty Accounts Service Charge Processing
Retirement Accounts Accounts Assessed a Service Charge
Retirement Account Statement Processing Landlord Tenant Account Processing
Variable Interest Accounts Surrogate Account Processing
Detail Statement Production IOLTA Processing
DDA ACCOUNTS
DDA Accounts Extra DDA Statement Cycles
Posting of All Item Transmitted Combined Statements
DDA Statement Check Register Transactions Overdraft Reminder Notices
DDA Transaction Processing IEH Processing
Line of Credit Processing Total Plus Currency Reporting
Automatic LOC Disbursements Online File Maintenance Histories (all
DDA Variable Interest Rate Accounts applications)
Account Analysis
Sweep Processing
COMMERCIAL LOANS
Commercial Notes Processing Commercial Loan Deferred Fee
Online Commercial Loan Histories Accounts
MORTGAGE LOANS
Mortgage Loan Accounts ML History Cards
Construction Loan Accounts Adjustable Rate Mortgage Loans
Investor Reporting AML Rate Change Notices
Online Mortgage Loan Histories ML Deferred Fee/Cost Accounting
ML Accounts with MICR/OCR Coupons Online Construction Loan Histories
ML Accounts with Escrow Credit Bureau Reporting
ML Accounts with Tax and Insurance Records Automated Letters
FASB 91 Accounts Reported Loans to One Borrower Report (all
Loan Commitments applications)
Extra ML Trial Balance Runs
GENERAL LEDGER
TFM Core Package GL Integration
INSTALLMENT LOANS
Consumer/Savings Account Loans IL Accounts with MICR/OCR Coupons
Commercial Loans IL Notices/Billing Runs
Online Installment Loan Histories IL Notices Billing Generated
IL Investor Accounts IL Deferred Fee/Cost Accounting
Dealer Reporting/Floor Planning Adjustable Rate Installment Loans
IL Classification Reports Credit Bureau Reporting
IL Classification Accounts Reported Share Loan Trial Balance Runs
IL History Cards
4
FIRST LEHIGH BANK
Exhibit A (Cont'd)
ATM SUPPORT
Other Source ATM Tapes Other Servicer Balance File Update
Other Source ATM Transactions
MISCELLANEOUS PROCESSING
ACH Transactions Total Remote Print
TotalMatic Internal/External Drafts Automatic Withholding Accounts
TotalMatic Accounts Tax Compliance Processing
Customer Information File Quarterly OTC Records on File
Online CIF Memos. Microfiche Originals
Transactions Processing Notices Microfiche Copies
Disaster Recovery Assessment Pages Microfiched
Remote Print Software Support
First T-Pooled Terminal at Each Location
Additional T-Pooled Terminals (not to exceed 20% growth in the aggregate
over the number of terminals on Initiation Date)
FIRST LEHIGH BANK
Exhibit B
Early Termination Fee Per Paragraph 2.1(d)
Month During Which Effective
Termination Date Occurs Early Termination Fee
---------------------------- ---------------------
July 1997 $159,800
August 1997 150,400
September 1997 141,000
October 1997 131,600
November 1997 122,200
December 1997 112,800
January 1998 103,400
February 1998 - January 1999 100,000
February 1999 94,000
March 1999 84,600
April 1999 75,200
May 1999 65,800
June 1999 - June 2001 50,000
July 2001 47,000
August 2001 37,600
September 2001 28,200
October 2001 18,800
November 2001 9,400
December 2001 0
