EXHIBIT 10.15
AGREEMENT
between
FISERV SOLUTIONS, INC.
0000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
and
Franklin Bank, SSB
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Date:
2/28/99
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AGREEMENT dated as of 2/28/99 ("Agreement") between FISERV SOLUTIONS, INC., a
Wisconsin corporation ("Fiserv"), and Franklin Bank, SSB, a Savings Bank
("Client").
Fiserv and Client hereby agree as follows:
1. Term. The initial term of this Agreement shall be five (5) years and
four (4) months, unless written notice of non-renewal is provided by either
party at least 180 days prior to expiration of the initial term or any renewal
term, this Agreement shall automatically renew for a renewal term of five (5)
years. This Agreement shall commence on the earliest of the day Fiserv Services
(as defined below) are first used by Client.
2. Services. (a) Services Generally. Fiserv, itself and through its
affiliates, agrees to provide Client, and Client agrees to obtain from Fiserv
services ("Services") and products ("Products") (collectively, "Fiserv
Services") described in the available Exhibits, as follows:
Exhibit A - Account Processing Services
Exhibit B - Item Processing Services
Exhibit C - EFT Services
Additional products and services may be adding during the term of this agreement
at the then current rates and fees by the addition of, but not limited to, any
one or all of the following exhibits.
Exhibit D - Mortgage Processing Services
Exhibit E - BankLink Products and Services
Exhibit F - Wire Transfer Services
Exhibit G - ACH Services
Exhibit H - Development Services
Exhibit I - Integration Services
Exhibit J - HRIS Services
Exhibit K - Card Services
Exhibit L - Material Purchased Through Fiserv
Exhibit M - Software Products
Exhibit N - Support Services
Exhibit O - Internet and Remote Banking Services
The Exhibits set forth specific terms and conditions applicable to the
Services and/or Products, and, where applicable, the Fiserv affiliate so
performing. Client may select additional services and products from time to time
by incorporating an appropriate Exhibit to this Agreement.
(b) Conversion Services. Fiserv will convert Client's existing
applicable data and/or information to the Fiserv Services. Those activities
designed to transfer the processing from Client's present servicer to the Fiserv
Services are referred to as "Conversion Services". Client agrees to cooperate
with Fiserv in connection with Fiserv's provision of Conversion Services and to
provide all necessary information and assistance to facilitate the conversion.
Client is responsible for all out-of-pocket expenses associated with the
Conversion Services. Fiserv will provide Conversion Services as required in
connection with Fiserv Services.
(c) Training Services. Fiserv shall provide training, training aids,
user manuals, and other documentation for Client's use as Fiserv finds necessary
to enable Client personnel to become familiar with Fiserv Services. If requested
by Client, classroom training in the use and operation of Fiserv Services will
be provided at a training facility designated by Fiserv. All such training aids
and manuals remain Fiserv's property.
3. Fees for Fiserv Services, (a) General. Client agrees to pay Fiserv:
(i) fees for the prior month as specified in the Exhibits; Fees for
Fiserv Services may be increased annually for cost of living based on
the prior twelve (12) months' Consumer Price Index (CPI) or six percent
(6%) whichever is higher.
(ii) out-of-pocket charges for the prior month payable by Fiserv for
the account of Client; and
(iii) Taxes (as defined below) thereon (collectively, "Fees").
Upon notification to and acceptance by Client, Fiserv may increase its fees in
excess of amounts listed in the Exhibits in the event that Fiserv implements
major system enhancements to comply with changes in law, government regulation,
or industry practices.
(b) Additional Charges. Fees for out-of-pocket expenses, such as
telephone, microfiche, courier, and other charges incurred by Fiserv for goods
or services obtained by Fiserv on Client's behalf shall be billed to Client at
cost plus the applicable Fiserv administrative fee. Such out-of-pocket expenses
may be changed from time to time upon notification of a fee change from a
vendor/provider.
(c) Taxes. Fiserv shall add to each invoice any sales, use, excise,
value added, and other taxes and duties however designated that are levied by
any taxing authority relating to the
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(d) Exclusions. The Fees do not include, and Client shall be
responsible for, furnishing transportation or transmission of information
between Fiserv's service center(s), Client's site(s), and any applicable
clearing house, regulatory agency, or Federal Reserve Bank.
(e) Payment Terms. Fees are due and payable monthly upon receipt of
invoice. Client shall pay Fiserv through the Automated Clearing House. In the
event any amounts due remain unpaid beyond the 30th day after payment is due,
Client shall pay a late charge of 1.5% per month. Client agrees that it shall
neither make nor assert any right of deduction or set-off from invoices
submitted by Fiserv for Fiserv Services.
4. Access to Fiserv Services. (a) Procedures. Client agrees to comply
with applicable regulatory requirements and procedures for use of Services
established by Fiserv.
(b) Changes. Fiserv continually reviews and modifies Fiserv systems
used in the delivery of Services (the "Fiserv System") to improve service and
comply with government regulations, if any, applicable to the data and
information utilized in providing Services. Fiserv reserves the right to make
changes in Services, including but not limited to operating procedures, type of
equipment or software resident at, and the location of Fiserv's service
center(s). Fiserv will notify Client of any material change that affects
Client's normal operating procedures, reporting, or service costs prior to
implementation of such change.
(c) Communications Lines. Fiserv shall order the installation of
appropriate communication lines and equipment to facilitate Client's access to
Services. Client understands and agrees to pay charges relating to the
installation and use of such lines and equipment as set forth in the Exhibits.
(d) Terminals and Related Equipment. Client shall obtain necessary and
sufficient terminals and other equipment, approved by Fiserv and compatible with
the Fiserv System, to transmit and receive data and information between Client's
location(s), Fiserv's service center(s), and/or other necessary location(s).
Fiserv and Client may mutually agree to change the type(s) of terminal and
equipment used by Client.
5. Client Obligations, (a) Input. Client shall be solely responsible
for the input, transmission, or delivery to and from Fiserv of all information
and data required by Fiserv to perform Services unless Client has retained
Fiserv to handle such responsibilities, as specifically set forth in the
Exhibits. The information and data shall be provided in a format and manner
approved by Fiserv. Client will provide at its own expense or procure from
Fiserv all equipment, computer software, communication lines, and interface
devices required to access the Fiserv System. If Client has elected to provide
such items itself, Fiserv shall provide Client with a list of compatible
equipment and software; Client agrees to pay Fiserv's standard fee for
recertification of the Fiserv System resulting therefrom.
(b) Client Personnel. Client shall designate appropriate Client
personnel for training in the use of the Fiserv System, shall supply Fiserv with
reasonable access to Client's site during normal business hours for Conversion
Services and shall cooperate with Fiserv personnel in their performance of
Services, including Conversion Services.
(c) Use of Fiserv System. Client shall (i) comply with any operating
instructions on the use of the Fiserv System provided by Fiserv; (ii) review all
reports furnished by Fiserv for accuracy; and (iii) work with Fiserv to
reconcile any out of balance conditions. Client shall determine and be
responsible for the authenticity and accuracy of all information and data
submitted to Fiserv.
(d) Client's Systems. Client shall be responsible for ensuring that its
systems are Year 2000 compliant and capable of passing and/or accepting date
formats from and/or to the Fiserv System.
6. Ownership and Confidentiality. (a) Definition.
(i) Client Information. "Client Information" means: (A) confidential
plans, customer lists, information, and other proprietary material of
Client that is marked with a restrictive legend, or if not so marked
with such legend or is disclosed orally, is identified as confidential
at the time of disclosure (and written confirmation thereof is promptly
provided to Fiserv); and (B) any information and data concerning the
business and financial records of Client's customers prepared by or for
Fiserv, or used in any way by Fiserv in connection with the provision
of Fiserv Services (whether or not any such information is marked with
a restrictive legend).
(ii) Fiserv Information. "Fiserv Information" means: (A) confidential
plans, information, research, development, trade secrets, business
affairs (including that of any Fiserv client, supplier, or affiliate),
and other proprietary material of Fiserv that is marked with a
restrictive legend, or if not so marked with such legend or is
disclosed orally, is identified as confidential at the time of
disclosure (and written confirmation thereof is promptly provided to
Client); and (B) Fiserv's proprietary computer programs, including
custom software modifications, software documentation and training
aids, and all data, code, techniques, algorithms, methods, logic,
architecture, and designs embodied or incorporated therein (whether or
not any such information is marked with a restrictive legend).
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(iii) Information. "Information" means Client Information and Fiserv
Information. No obligation of confidentiality applies to any
Information that the receiving party ("Recipient") (A) already
possesses without obligation of confidentiality; (B) develops
independently; or (C) rightfully receives without obligation of
confidentiality from a third party. No obligation of confidentiality
applies to any Information that is, or becomes, publicly available
without breach of this Agreement.
(b) Obligations. Recipient agrees to hold as confidential all
Information it receives from the disclosing party ("Discloser"). All Information
shall remain the property of Discloser or its suppliers and licensors.
Information will be returned to Discloser at the termination or expiration of
this Agreement. Recipient will use the same care and discretion to avoid
disclosure of Information as it uses with its own similar information that it
does not wish disclosed, but in no event less than a reasonable standard of
care. Recipient may use Information for any purpose that does not violate such
obligation of confidentiality. Recipient may disclose Information to (i)
employees and employees of affiliates who have a need to know; and (ii) any
other party with Discloser's written consent. Before disdosure to any of the
above parties, Recipient will have a written agreement with such party
sufficient to require that party to treat Information in accordance with this
Agreement. Recipient may disclose Information to the extent required by law.
However, Recipient agrees to give Discloser prompt notice so that it may seek a
protective order. The provisions of this sub-section survive any termination or
expiration of this Agreement.
(c) Residuals. Nothing contained in this Agreement shall restrict
Recipient from the use of any ideas, concepts, know-how, or techniques
contained in Information that are related to Recipient's business activities
("Residuals"), provided that in so doing, Recipient does not breach its
obligations under this Section. However, this does not give Recipient the right
to disclose the Residuals except as set forth elsewhere in this Agreement.
(d) Fiserv System. The Fiserv System contains information and computer
software that are proprietary and confidential information of Fiserv, its
suppliers, and licensors. Client agrees not to attempt to circumvent the devices
employed by Fiserv to prevent unauthorized access to the Fiserv System,
including, but not limited to, alterations, decompiling, disassembling,
modifications, and reverse engineering thereof.
(e) Confidentiality of this Agreement. Fiserv and Client agree to keep
confidential the prices, terms and conditions of this Agreement, without
disclosure to third parties.
7. Regulatory Agencies, Regulations and Legal Requirements. (a) Client
Files. Records maintained and produced for Client ("Client Files") may be
subject to examination by such Federal, State, or other governmental regulatory
agencies as may have jurisdiction over Client's business to the same extent as
such records would be subject if maintained by Client on its own premises.
Client agrees that Fiserv is authorized to give all reports, summaries, or
information contained in or derived from the data or information in Fiserv's
possession relating to Client when formally requested to do so by an authorized
regulatory or government agency.
(b) Compliance with Regulatory Requirements. Client agrees to comply
with applicable regulatory and legal requirements, including without limitation:
(i) submitting a copy of this Agreement to the appropriate regulatory
agencies prior to the date Services commence;
(ii) providing adequate notice to the appropriate regulatory agencies
of the termination of this Agreement or any material changes in
Services;
(iii) retaining records of its accounts as required by regulatory
authorities;
(iv) obtaining and maintaining, at its own expense, any Fidelity Bond
required by any regulatory or governmental agency; and
(v) maintaining, at its own expense, such casualty and business
interruption insurance coverage for loss of records from fire,
disaster, or other causes, and taking such precautions regarding the
same, as may be required by regulatory authorities.
8.Warranties. (a) Fiserv Warranties. Fiserv represents and warrants
that:
(i)(A) Services will conform to the specifications set forth in the
Exhibits; (B) Fiserv will perform Client's work accurately provided
that Client supplies accurate data and information, and follows the
procedures described in all Fiserv documentation, notices, and advices;
(C) Fiserv personnel will exercise due care in provision of Services;
(D) the Fiserv System will comply in all material respects with all
applicable Federal and State regulations governing Services; and (E)
the Fiserv System is or will be Year 2000 compliant. In the event of an
error or other default caused by Fiserv personnel, systems, or
equipment, Fiserv shall correct the data or information and/or
reprocess the affected item or report at no additional cost to Client.
Client agrees to supply Fiserv with a written request for correction of
the error within 7 days after Client's receipt of the work containing
the error. Work reprocessed due to errors in data supplied by Client,
an Client's behalf by a third party, or by Client's
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failure to follow procedures set forth by Fiserv shall be billed to
Client at Fiserv's then current time and material rates; and
(ii) it owns or has a license to furnish all equipment or software
comprising the Fiserv System. Fiserv shall indemnify Client and hold it
harmless against any claim or action that alleges that the Fiserv
System use infringes a United States patent, copyright, or other
proprietary right of a third party. Client agrees to notify Fiserv
promptly of any such claim and grants Fiserv the sole right to control
the defense and disposition of all such claims. Client shall provide
Fiserv with reasonable cooperation and assistance in the defense of any
such claim.
THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES
MADE BY FISERV. FISERV DOES NOT MAKE, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL
OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL LIABILITIES
OR OBLIGATIONS OF FISERV FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE
DELIVERY, USE, OR PERFORMANCE OF FISERV SERVICES.
(b) Client Warranties. Client represents and warrants that: (A) no
contractual obligations exist that would prevent Client from entering into this
Agreement; (B) it has complied with all applicable regulatory requirements; and
(C) Client has requisite authority to execute, deliver, and perform this
Agreement. Client shall indemnify and hold harmless Fiserv, its officers,
directors, employees, and affiliates against any claims or actions arising out
of (X) the use by Client of the Fiserv System in a manner other than that
provided in this Agreement; and (Y) any and all claims by third parties through
Client arising out of the performance and non-performance of Fiserv Services by
Fiserv, provided that the indemnity listed in clause (Y) hereof shall not
preclude Client's recovery of direct damages pursuant to the terms and subject
to the limitations of this Agreement.
9. Limitation of Liability. (a) General. IN NO EVENT SHALL FISERV BE
LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING FROM CLIENT'S USE OF FISERV SERVICES, OR FISERV'S
SUPPLY OF EQUIPMENT OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT
OR IN CONTRACT. CLIENT MAY NOT ASSERT ANY CLAIM AGAINST FISERV MORE THAN 2 YEARS
AFTER SUCH CLAIM ACCRUED. FISERV'S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF
ACTION RELATING TO SERVICES SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO
FISERV FOR SERVICES RESULTING IN SUCH LIABILITY IN THE 2 MONTH PERIOD PRECEDING
THE DATE THE CLAIM ACCRUED. FISERV'S AGGREGATE LIABILITY FOR A DEFAULT RELATING
TO EQUIPMENT OR SOFTWARE SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT FOR THE
EQUIPMENT OR SOFTWARE.
(b) Lost Records. If Client's records or other data submitted for
processing are lost or damaged as a result of any failure by Fiserv, its
employees, or agents to exercise reasonable care to prevent such loss or damage,
Fiserv's liability on account of such loss or damages shall not exceed the
reasonable cost of reproducing such records or data from exact duplicates
thereof in Client's possession.
10. Disaster Recovery. (a) General. Fiserv maintains a disaster
recovery plan ("Disaster Recovery Plan") for each Service. A "Disaster" shall
mean any unplanned interruption of the operations of or inaccessibility to
Fiserv's service center in which Fiserv, using reasonable judgment, requires
relocation of processing to a recovery location. Fiserv shall notify Client as
soon as possible after Fiserv deems a service outage to be a Disaster. Fiserv
shall move the processing of Client's standard services to a recovery location
as expeditiously as possible and shall coordinate the cut-over to back-up
telecommunication facilities with the appropriate carriers. Client shall
maintain adequate records of all transactions during the period of service
interruption and shall have personnel available to assist Fiserv in implementing
the switchover to the recovery location. During a Disaster, optional or
on-request services shall be provided by Fiserv only to the extent adequate
capacity exists at the recovery location and only after stabilizing the
provision of base services.
(b) Communications. Fiserv shall work with Client to establish a plan
for alternative communications in the event of a Disaster.
(c) Disaster Recovery Test. Fiserv shall test the Disaster, Recovery
Plan periodically. Client agrees to participate in and assist Fiserv with such
test, if requested by Fiserv. Upon Client request, test results will be made
available to Client's management, regulators, auditors, and insurance
underwriters.
(d) Client Plans. Fiserv agrees to release information necessary to
allow Client's development of a disaster recovery plan that operates in concert
with the Disaster Recovery Plan.
(e) No Warranty. Client understands and agrees that the Disaster
Recovery Plan is designed to minimize, but not eliminate, risks associated with
a Disaster affecting Fiserv's service center(s). Fiserv does not warrant that
Fiserv Services will be uninterrupted or error free in the event of a Disaster;
no performance standards shall be applicable for the duration of a Disaster.
Client maintains responsibility for adopting a disaster recovery plan relating
to disasters affecting Client's facilities
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and for securing business interruption insurance or other insurance necessary
for Client's protection.
11. Termination. (a) Material Breach. Except as provided elsewhere in
this Section 11, either party may terminate this Agreement in the event of a
material breach by the other party not cured within 90 days following written
notice stating, with particularity and in reasonable detail, the nature of the
claimed breach.
(b) Failure to Pay. In the event any invoice remains unpaid by Client
30 days after due, or Client deconverts any data or information from the Fiserv
System without prior written consent of Fiserv, Fiserv, at its sole option, may
terminate this Agreement and/or Client's access to and use of Fiserv Services.
Any invoice submitted by Fiserv shall be deemed correct unless Client provides
written notice to Fiserv within 15 days of the invoice date specifying the
nature of the disagreement.
(c) Remedies. Remedies contained in this Section 11 are cumulative and
are in addition to the other rights and remedies available to Fiserv under this
Agreement, by law or otherwise.
(d) Defaults. If Client:
(i) defaults in the payment of any sum of money due;
(ii) breaches this Agreement in any material respect or otherwise
defaults in any material respect in the performance of any of its
obligations; or
(iii) commits an act of bankruptcy or becomes the subject of any
proceeding under the Bankruptcy Code or becomes insolvent or if any
substantial part of Client's property becomes subject to any levy,
seizure, assignment, application, or sale for or by any creditor or
governmental agency;
then, in any such event, Fiserv may, upon written notice, terminate this
Agreement and be entitled to recover from Client as liquidated damages an amount
equal to the present value of all payments remaining to be made hereunder for
the remainder of the initial term or any renewal term of this Agreement. For
purposes of the preceding sentence, present value shall be computed using the
"prime" rate (as published in The Wall Street Journal) in effect at the date of
termination and "all payments remaining to be made" shall be calculated based on
the average bills for the 3 months immediately preceding the date of
termination. Client agrees to reimburse Fiserv for any expenses Fiserv may
incur, including reasonable attorneys' fees, in taking any of the foregoing
actions.
(e) Convenience. Client may terminate this Agreement during any term by
paying a termination fee based on the remaining unused term of this Agreement,
the amount to be determined by multiplying Client's largest monthly invoice for
each Fiserv Service received by Client during the term (or if no monthly invoice
has been received, the sum of tie estimated monthly billing for each Fiserv
Service to be received hereunder) by 80% times the remaining months of the term,
plus any unamortized conversion fees or third party costs existing on Fiserv's
books on the date of termination. Client understands and agrees that Fiserv
losses incurred as a result of early termination of the Agreement would be
difficult or impossible to calculate as of the effective date of termination
since they will vary based on, among other things, the number of clients using
the Fiserv System on the date the Agreement terminates. Accordingly, the amount
set forth in the first sentence of this subsection represents Client's agreement
to pay and Fiserv's agreement to accept as liquidated damages (and not as a
penalty) such amount for any such Client termination.
(f) Merger. In the event of a merger between Client and another
organization in which Client is not the surviving organization and where the
other organization was not previously a user of Fiserv services similar to the
Services, Fiserv will allow an early termination of this Agreement upon the
following terms and conditions:
(i) written notice must be given 3 months in advance, specifying the
termination date;
(ii) Fiserv may specify a deconversion date based on its previous
commitments and work loads; and
(iii) Fiserv may charge a termination fee in accordance with subsection
(e) above.
(g) Return of Data Files. Upon expiration or termination of this
Agreement, Fiserv shall furnish to Client such copies of Client Files as Client
may request in Fiserv's standard machine readable format along with such
information and assistance as is reasonable and customary to enable Client to
deconvert from the Fiserv System, provided, however, that Client consents and
agrees and authorizes Fiserv to retain Client files until (i) Fiserv is paid in
full for (A) all Services provided through the date such Client Files are
returned to Client; and (B) any and all other amounts that are due or will
become due under this Agreement; (ii) Fiserv is paid its then standard rates for
the services necessary to return such Client Files; (iii) if this Agreement is
being terminated, Fiserv is paid any applicable termination fee pursuant to
subsection (d), (e), or (f) above; and (iv) Client has returned to Fiserv all
Fiserv Information. Unless directed by Client in writing to the contrary, Fiserv
shall be permitted to destroy Client Files any time after 30 days from the final
use of Client files for processing.
(h) Miscellaneous. Client understands and agrees that Client is
responsible for the deinstallation and return shipping of any Fiserv-owned
equipment located on Client's premises.
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12. Arbitration. (a) General. Except with respect to disputes arising
from a misappropriation or misuse of either party's proprietary rights, any
dispute or controversy arising out of this Agreement, or its interpretation,
shall be submitted to and resolved exclusively by arbitration under the rules
then prevailing of the American Arbitration Association, upon written notice of
demand for arbitration by the party seeking arbitration, setting forth the
specifics of the matter in controversy or the claim being made. The arbitration
shall be heard before an arbitrator mutually agreeable to the parties; provided,
that if the parties cannot agree on the choice of arbitrator within 10 days
after the first party seeking arbitration has given written notice, then the
arbitration shall be heard by three arbitrators, one chosen by each party, and
the third chosen by those two arbitrators. The arbitrators will be selected from
a panel of persons having experience with and knowledge of information
technology and at least one of the arbitrators selected will be an attorney. A
hearing on the merits of all claims for which arbitration is sought by either
party shall be commenced not later than 60 days from the date demand for
arbitration is made by the first party seeking arbitration. The arbitrator(s)
must render a decision within 10 days after the conclusion of such hearing. Any
award in such arbitration shall be final and binding upon the parties and the
judgment thereon may be entered in any court of competent jurisdiction.
(b) Applicable Law. The arbitration shall be governed by the United
States Arbitration Act, 9 U.S.C. 1-16. The arbitrators shall apply the
substantive law of the State of Texas, without reference to provisions relating
to conflict of laws. The arbitrators shall not have the power to alter, modify,
amend, add to, or subtract from any term or provision of this Agreement, nor to
rule upon or grant any extension, renewal, or continuance of this Agreement. The
arbitrators shall have the authority to grant any legal remedy available had the
parties submitted the dispute to a judicial proceeding.
(c) Situs. If arbitration is required to resolve any disputes between
the parties, the proceedings to resolve the first such dispute shall be held in
Houston, Texas, the proceedings to resolve the second such dispute shall be held
in San Antonio, Texas, and the proceedings to resolve any subsequent disputes
shall alternate between Houston, Texas and San Antonio, Texas.
13. Insurance. Fiserv carries the following types of insurance
policies:
(i) Comprehensive General Liability in an amount not less than $1
million per occurrence for claims arising out of bodily injury and
property damage;
(ii) Commercial Crime covering employee dishonesty in an amount not
less than $5 million;
(iii) All-risk property coverage including Extra Expense and Business
Income coverage; and
(iv) Workers Compensation as mandated or allowed by the laws of the
state in which Services are being performed, including $500,000
coverage for Employer's Liability.
14. Audit. Fiserv employs an internal auditor responsible for ensuring
the integrity of its processing environments and internal controls. In addition,
Fiserv provides for periodic independent audits of its operations. Fiserv shall
provide Client with a copy of the audit of the Fiserv service center providing
Services within a reasonable time after its completion and shall charge each
client a fee based on the pro rata cost of such audit. Fiserv shall also provide
a copy of such audit to the appropriate regulatory agencies, if any, having
jurisdiction over Fiserv's provision of Services.
15. General. (a) Binding Agreement. This Agreement is binding upon the
parties and their respective successors and permitted assigns. Neither this
Agreement nor any interest may be sold, assigned, transferred, pledged, or
otherwise disposed of by Client, whether pursuant to change of control or
otherwise, without Fiserv's prior written consent. Client agrees that Fiserv may
subcontract any Services to be performed hereunder. Any such subcontractors
shall be required to comply with all applicable terms and conditions.
(b) Entire Agreement. This Agreement, including its Exhibits, which are
expressly incorporated herein by reference, constitutes the complete and
exclusive statement of the agreement between the parties as to the subject
matter hereof and supersedes all previous agreements with respect thereto.
Modifications of this Agreement must be in writing and signed by duly authorized
representatives of the parties. Each party hereby acknowledges that it has not
entered into this Agreement in reliance upon any representation made by the
other party not embodied herein. In the event any of the provisions of any
Exhibit are in conflict with any of the provisions of this Agreement, the terms
and provisions of this Agreement shall control unless the Exhibit in question
expressly provides that its terms and provisions shall control.
(c) Severability. If any provision of this Agreement is held to be
unenforceable or invalid, the other provisions shall continue in full force and
effect.
(d) Governing Law. This Agreement will be governed by the substantive
laws of the State of Texas, without reference to provisions relating to conflict
of laws. The United Nations Convention of Contracts for the International Sale
of Goods shall not apply to this Agreement.
(e) Force Majeure. Neither party shall be responsible for delays or
failures in performance resulting from acts reasonably beyond the control of
that party.
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(f) Notices. Any written notice required or permitted to be given
hereunder shall be given by: (i) Registered or Certified Mail, Return Receipt
Requested, postage prepaid; (ii) confirmed facsimile; or (iii) nationally
recognized courier service to the other party at the addresses listed on the
cover page or to such other address or person as a party may designate in
writing. All such notices shall be effective upon receipt.
(g) No Waiver. The failure of either party to insist on strict
performance of any of the provisions hereunder shall not be construed as the
waiver of any subsequent default of a similar nature.
(h) Financial Statements. Fiserv shall provide Client and the
appropriate regulatory agencies so requiring a copy of Fiserv, Inc.'s audited
consolidated financial statements.
(i) Prevailing Party. The prevailing party in any arbitration, suit, or
action brought against the other party to enforce the terms of this Agreement or
any rights or obligations hereunder, shall be entitled to receive its reasonable
costs, expenses, and attorneys' fees of bringing such arbitration, suit, or
action.
(j) Survival. All rights and obligations of the parties under this
Agreement that, by their nature, do not terminate with the expiration or
termination of this Agreement shall survive the expiration or termination of
this Agreement.
(k) Exclusivity. Client agrees that Fiserv shall be the sole and
exclusive provider of the services that are the subject matter of this
Agreement. For purposes of the foregoing, the term "Client" shall include Client
affiliates. During the term of this Agreement, Client agrees not to enter into
an agreement with any other entity to provide these services (or similar
services) without Fiserv's prior written consent. If Client acquires another
entity, the exclusivity provided to Fiserv hereunder shall take effect with
respect to such acquired entity as soon as practicable after termination of such
acquired entity's previously existing arrangement for these services. If Client
is acquired by another entity, the exclusivity provided to Fiserv hereunder
shall apply with respect to the level or volume of these services provided
immediately prior to the signing of the definitive acquisition agreement
relating to such acquisition and shall continue with respect to the level or
volume of these services until any termination or expiration of this Agreement.
(l) Recruitment of Employees. Client agrees not to hire Fiserv's
employees during the term of this Agreement and for a period of 6 months after
any termination or expiration thereof, except with Fiserv's prior written
consent.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date indicated
below.
For Client: For Fiserv:
Franklin Bank, SSB FISERV SOLUTIONS, INC.
By: By:
------------------------------- --------------------------------
Name: Name:
Title: Title:
Date: 2-25-99 Date: 2-27-99
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Exhibit A
Account Processing Services
Client agrees with Fiserv as follows:
1. Services. Fiserv will provide Client the Account Processing Services
("Account Processing Services") specified in Exhibit A-1.
2. Fees. Client shall pay Fiserv fees and other charges for
Account Processing Services specified in Exhibit A-2.
3. Responsibility for Accounts. Client shall be responsible for
balancing its accounts each business day and notifying Fiserv immediately of any
errors or discrepancies. Provided that Client immediately notifies Fiserv of any
discrepancy in Client's accounts, Fiserv shall, at its expense, promptly
recompute accounts affected by discrepancies solely caused by the Fiserv Systems
or provide for another mutually agreeable resolution. Fiserv will use its
commercially reasonable efforts to correct errors attributable to Client or
Client's other third party servicers. Reconstruction of error conditions
attributable to Client or to third parties acting on Client's behalf will be
done at prevailing rates as set forth in Exhibit A-2.
4. Annual Histories. Fiserv currently maintains annual histories, where
applicable, for its clients. These histories can be used to reconstruct Client
Files in an emergency. However, in order to permit prompt and accurate
reconstruction of accounts, Client agrees to retain at all times and make
available to Fiserv upon request the most recent data printout(s) received from
Fiserv, together with copies or other accurate and retrievable records of all
transactions to be reflected on the next consecutive printout(s).
5. Hours of Operation. Account Processing Services will be available
for use by Client during standard Fiserv business hours, excluding holidays, as
specified in Exhibit A-3. Account Processing Services may be available during
additional hours, during which time Client may use Services at its option and
subject to additional charges.
6. Protection of Data. (a) For the purpose of compliance with
applicable government regulations, Fiserv has an operations backup center, for
which Client agrees to pay the charges indicated in Exhibit A-2. Copies of
transaction files are maintained by Fiserv off premises in secured vaults.
(b) Fiserv provides "on-line" security via utilization of leased lines
with poll/select protocol.
(c) Upon Client providing access to Client Files through Client's
customers' personal computers or voice response system, Client agrees to
indemnify and hold harmless Fiserv, its officers, directors, employees, and
affiliates against any claims or actions arising out of such access to Client
Files or any Fiserv files (including the files of other Fiserv clients) or the
Fiserv System or other Fiserv systems.
7. Processing Priority. Fiserv does not subscribe to any processing
priority; all users receive equal processing consideration.
8. Forms and Supplies. Client assumes and will pay the charges for all
customized forms, supplies, and delivery charges. Custom forms ordered through
Fiserv will be subject to a 10% administrative fee for warehousing and inventory
control. Forms ordered by Client and warehoused at Fiserv will be subject to the
administrative fee set forth in Exhibit A-2.
9. Regulatory Supervision. By entering into this Agreement, Fiserv
agrees that the Office of Thrift Supervision, FDIC, or other regulatory agencies
having authority over Client's operations shall have the authority and
responsibility provided to the regulatory agencies pursuant to the Bank Service
Corporation Act, 12 U.S.C. 1867(C) relating to services performed by contract or
otherwise.
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Exhibit A-1
Account Processing Services
FISERV RESPONSIBILITIES
Fiserv will provide Client with the following services for the fees and
charges in Exhibit A-2.
BASE SERVICES:
A. Account Processing:
- DDA
- Overdraft Checking (Check Loan)
- On-Line Commercial Account Analysis
- NOW/MMA
- Savings
- CDs
- IRAs
- Loans
B. Additional Services:
- CIS with Customer Profitability and Quarterly Report
of Customers by Profit Contribution
- On-Line Report Writer and File Download
- ACH Receiving
- Optical Disk File Download
- One (1) Credit Bureau Tape Monthly
- On-line NSF Processing
NETWORK SUPPORT SERVICES:
- Poll Select line between Fiserv's account processing center
and Client's primary banking location.
CONVERSION SERVICES:
- Executive Overview and Planning Session - outlines the effort
and resources required for implementation and planning of the
project and tasks required.
- Application Training - training in the functions and
operations of the Account Processing Services software.
- Conversion Specifications and Program Construction - writing
of conversion specifications, translation into program code
and testing.
- Quality Acceptance and Daily Testing - review of converted
data and daily processing by Fiserv.
- Data Verification - review and verification of converted data
and daily processing by Client and Fiserv project teams.
- Conversion Readiness - final review of converted data,
procedures, daily processing, workflow, balancing, and
additional familiarization with functionality by Client.
- Live Conversion - initial production implementation
- Post Project Review - turnover of Client to Fiserv's Project
Manager for evaluation of conversion process by Client.
TRAINING:
- Initial training provided as part of Conversion Services
- Refresher training available
CLIENT SUPPORT:
- Staffing and maintenance to undertake investigations,
inquiries, and problem resolution associated with the
Application Processing Services software.
- Applications support personnel will be available to assist and
support Client's support services staff.
CLIENT RESPONSIBILITIES
Client will be responsible for the following activities:
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PERSONNEL:
- Conversion Project Manager
- Staff necessary to assist in Conversion Services
- Courier services for delivery of data
THIRD PARTY SOFTWARE:
- Evaluation, selection, licensing, and procurement of
maintenance for third party application software (to be
operated by Fiserv on Client's behalf) as mutually agreed by
Fiserv and Client.
- Obtain any necessary consents to utilize third party software
licensed to Client as of the Effective Date, which consents
shall be provided to Fiserv (the obtaining of such consents
shall be a condition precedent to performance by Fiserv of its
obligations).
- Advising Fiserv of any connections, upgrades, or enhancements
that become available from third party vendors so that they
may be installed on a mutually agreeable schedule and in
accordance with the third party vendor's recommended time
schedule.
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Exhibit A-1 (Continued)
Available CustomerFile Reports/Frequency
NR-15 New Customer Account Report Daily
NR-16 Miscellaneous Income Assessed and Collected Daily
NR-17 Report of Waived Service-Late Charge Daily
NR-18 Large Debit-Credit and Balance Change Daily
NR-19 Automatic-Internally Generated Debits/Credits Daily
NR-20 Overdraft Report Daily
NR-21 Debits in Excess of Opening Balance Daily
NR-22 Large Average Balance Daily
NR-24 Paid Loan Journal Daily
NR-26 Not Sufficient Funds List (Officer) Daily
NR-27 Not Sufficient Funds List (Branch) Daily
NR-28 Commercial Analysis Activity Daily
NR-29 Uncollected Balance Violations Daily
NR-30 Selected Class Report Daily
NR-31 Special Overdraft Report Daily
NR-32 Time Accounts Balance and Rate Analysis Daily
NR-33 CD Matured, Not Yet Redeemed/Renewed Today Daily
NR-34 Savings Journal for Interest Checks Daily
NR-35 Disposition of Internal Withholding Daily
NR-36 Loan Coupon Order Report Weekly
NR-37 ACH Origination Daily
NR-39 Dormant and Inactive Account Activity Daily
NR-40 Unposted Dollar Transaction Journal Daily
NR-41 Unposted Non-Dollar Transaction Journal Daily
NR-43 New and Released Stops and Holds Daily
NR-44 Closed - Zero Balance & Pending Purge Report Daily
NR-45 File Maintenance Report Daily
NR-46 Purged Accounts Daily
NR-47 Static File Changes - Names Only Daily
NR-48 Stop Payment Suspects Daily
NR-50 Payments on Delinquent Loans Daily
NR-51 Earned Discount Daily
NR-55 Dealer Wholesale Outstanding Report Daily
NR-58 Audit Exception Report Daily
NR-59 Overdraft Loan Financial Statement Report Daily
NR-60 Convenience Credit Report Daily
NR-61 Large Beginning Balance Report (On Request) Daily
NR-62 Interest Exception and Adjustments Daily
NR-63 ATM Card Order/Reorder Report Daily
NR-64 Recycles for Next Processing Day Daily
NR-65 Current Interest Index Report Daily
NR-66 Large Cash Transaction Report Daily
NR-67 Over-the-Counter Transaction Report Daily
NR-69 Loan Exception Report Daily
NR-70 Daily Loan Delinquent Report (On Request) Daily
NR-71 Daily Loan Delinquent Report (On Request) Daily
NR-72 Participation Trial Balance Daily
NR-73 Commitment Trial Balance Daily
NR-74 Daily Dealer Reserve Report Daily
NR-75 Future Maturities/Reviews by Office Code Daily
NR-76 Commitment Posting Journal Daily
NR-77 CLS Accounting Summary Daily
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NR-87 NOW Account Interest Daily
NR-88 Updated Class Totals Daily
NR-89 Masterfile Exception Report Daily
NR-92 Deposit Master Report Daily
NR-94 CLS Master Report Daily
NR-95 Account Analysis Statement Daily
NR-96 List Post Transactions On Occurrence - N/C
NR-99 Inactive/Unused Reports List Daily
CF140 CIF Mixed Item Exception Entry Report Daily
CF150 CIF Sit Entry Daily
CF188 Transaction Merge Report Daily
CF190 Transaction Deletion Journal Daily
CF194 Cash Link Transfer Report Daily
CF302 Supplemental Trial Balance Daily
CF303 Trial Balance/Posting Journal Daily
CF306 Dollar Xxxx Report Daily
CF341 Exception Items Report Daily
CF090 Combined Customer Statements Daily
- Overdraft Notices Daily
- NSF Notices Daily
- Return Check Notices Daily
- Advanced Maturity Notice Daily
- Automatic Renewal Notice Daily
- Interest Earned on CD Notice Daily
- Reference Number Change Notice Daily
- Transfer of Funds Notice Daily
- Payment Reminder Notices Daily
- Past Due Notices Daily
- Loan Collection Notices Daily
- Certificate Maturity Notice Daily
- ODL Cash Advance Notice Daily
- Account Analysis Notices Daily
- Return Deposit Notice Daily
- Debit Reversal Notice Daily
- Cash Management Notices Daily
- CD Interest Checks Weekly
- Christmas Club Checks Annually on Request
- Interest Notices (1099s) Annually on Request
YE-01 Customer Interest - Tax Information Annually No Addl. Chg.
YE-02 Customer Interest - Corrections IRS Tape
PEN01 Pension Journals Annually No Addl. Chg.
5498 Pension Statements Annually on Request
MR-06 Dealer Trial Balance On Request
MR-09 Soci-Economic Customer Dispersion On Request
MR-10 Geographical Dispersion On Request
MR-11 Credit Life insurance Report On Request
MR-12 ODL Credit Review Report On Request
MR-13 Overdraft Loan Past Due Account Report by Class On Request
MR-14 Overdraft Loan Past Due Account Report by Days Monthly
MR-15 Overdraft Loan Market Penetration Report On Request
MR-17 ODL Customer Balance Report On Request
MR-19 ODL Business Statistics On Request
MR-23 CD Maturity Schedule Monthly
MR-25 Report of CD over $100,000 Monthly
MR-26 Time Account Masterfile Information Monthly
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MR-27 XXX Trial Balance Monthly
MR-28 XXX Exception Report Monthly
MR-29 Time Account Upcoming Maturities Report Monthly
MR-30 Withholding YTD Report Monthly
MR-32 Average Balance Report - DDA, Sav & CD On Request
MR-33 High Average Balance Report, DDA, Sav & CD/>10,000 On Request
MR-34 Stop and Hold Report Monthly
MR-35 Dormant Account Report Monthly
MR-40 CLS Delinquent Report by Class - CLS On Request
MR-41 CLS Delinquent Report by Dealer - CLS On Request
MR-42 CLS Delinquent Report by Days - CLS On Request
MR-49 Analysis of Outstanding Loan Balances On Request
MR-50 Comparison of Monthly Loan Volume On Request
MR-52 Charge off Loan Report by Officer Monthly
MR-53 Charge off Loan Analysis Monthly
MR-55 CLS Prime Rate On Request
MR-61 Combined Loan Trial Balance On Request
MR-62 Loans By Risk Code, Emp. Class, Grade Code On Request
MR-63 Loan Document Tracking On Request
MR-64 Note Fees/Cost Amortization Totals (FASB91) On Request
MR-65 Call Code Report (Dep. & Loan) On Request
MR-66 Direct/Indirect Liability Report On Request
MR-67 Customer Average Balance Report - All Applications On Request
MR-68 Financial Statement Due Report On Request
MR-69 Monthly Comparative Analysis Report On Request
MR-71 Delinquent Loan Report (Optional) Semi - Monthly
MR-72 Past Due Officer Summary On Request
MR-76 Account Status Tracking Monthly
MR-77 Asset and Liability Sensitivity Monthly
MR-78 Loan Payment Due Schedule Monthly
MR-90 Financial Statement Worksheet - By Customer On Request
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Exhibit A-1 (Continued)
Available CustomerFile General Ledger Reports/Frequency
General Ledger Trial Balance Daily
Due From Banks Daily
Daily Error Journal Daily
Daily Statement of Condition Daily
GL Statement of Account (one account) Monthly
Financial Analysis Ratios Special Request
Daily Maintenance Report Daily
GL Trial Balance By Department Daily
GL Trial Balance By Officer Daily
GL Trial Balance By Vendor Daily
Liquidity Analysis report Daily
GL Input Report Daily
GL Posting Trans From Online Daily
GL Autoposting From Savings Daily
GL Autoposting From Mortgages Daily
Unposted Items For GL Autoposting Daily
Daily Check/Voucher Number Report Daily
Daily Income Statement Daily
General Ledger Trial By Division Daily
General Ledger Department Trail Monthly
Daily Statement of Condition - Divisional Daily
Daily Income Summary - Divisional Daily
GL Trial Balance Monthly
Closing GL Trial Balance Semiannually, On Request
Financial Analysis control Print On Request
Monthly Statement of Condition Monthly
Liquidity Analysis Report Monthly
Average Monthly Statement of Condition Monthly
Monthly Operating Report Monthly
Monthly Departmental Cost Report Monthly
Direct Operating Expenses By Division Monthly
Division Income Report Monthly
Monthly Division Cost Report Monthly
Monthly Income Statement Monthly
Officers Expenditures Report Monthly
Officers Expenditures Report-Recap Monthly
Advertising Expense Report Monthly
Vendor Code Report - Year to Date Monthly
Vendor Code Report - Year to Date Monthly
Twelve Period Actual Activity Report Monthly
Actual-to-Plan Comparison Report Monthly
Actual-to-Prior Year Comparison Monthly
Income and Expense Comparison Report Monthly
OTS/CALL Report Monthly
Monthly Check/Voucher Number Report Monthly
Monthly OTS/CALL Report Monthly
Quarterly OTS/CALL Report Quarterly
Special Classification Report Special Request
Twelve Period Actual Activity - Division Monthly
Actual-to-Plan Comparison - Division Monthly
Actual-to-Prior Year Comparison-Division Monthly
General Ledger Trial By Division Monthly
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Monthly Statement of Condition - Divisional Monthly
Monthly Income Summary - Divisional Monthly
Monthly Average Statement of condition - Divisional Monthly
Twelve Period Actual Activity Report Monthly
Financial Analysis Ratios Monthly
Monthly Subsidiary Trial Balance Monthly
Income and Expense Comparison Report Monthly
Daily Summary Report Monthly
Budget Verification Worksheet for 19XX Special Request
Twelve Period Actual Activity Report - Division Monthly
Budget Verification Worksheet for 19XX Special Request
Statement of Account (subsidiary history - one account) Special Request
GL Statement of Account (six month history) Semiannually
Subsidiary Trail Balance Daily
GL Internally Generated Entries Daily
Daily Summary Report Daily
GL Statement of Account (monthly history) Monthly
GL Statement of Account (by department) Monthly
GL Autoposting Control File Monthly
GL Master Control Print Special Request
Allocated Control Record Special Request
PAE Control Record Special Request
APDE Control Record Special Request
Subsidiary Control Record Special Request
Optional Products and Services:
- On-Request and Special reports in excess of six (6) per month in
Exhibit A are fee based.
- Confirmations, Annual Interest Notices, Gum Labels, Tax Disbursements,
Loan Coupons, Amortization Schedules, Saturday on-line services, Direct
Deposit Items, CD Interest Checks and other such miscellaneous services
will be provided at Customerfile special and miscellaneous fees, which
are subject to annual adjustments, and which will be reasonable.
Modified or new services may also be offered at reasonable fees.
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Exhibit A-3
Hours of Operation
Account Processing Services
The Fiserv Data Center will be in operation for on-line Account
Processing Services in accordance with the following:
Monday 7:00 A.M. - 7:00 P.M.
Tuesday 7:00 A.M. - 7:00 P.M.
Wednesday 7:00 A.M. - 7:00 P.M.
Thursday 7:00 A.M. - 7:00 P.M.
Friday 7:00 A.M. - 7:00 P.M.
All times stated are in accordance with prevailing local times for the
Fiserv Data Center. Voice Response Unit support for customer inquiry is
available 24 hours per day, 7 days per week.
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Exhibit B
Item Processing Services
Client agrees with Fiserv as follows:
1. Services. Fiserv will provide Client the Item Processing Services
(the "Item Processing Services") specified in Exhibit B - 1. Client agrees that
Fiserv shall be the sole provider of Item Processing or similar services. Client
shall not contract with another vendor or attempt to provide in-house any such
Item Processing Services or similar services without Fiserv's prior written
consent.
2. Fees. Client shall pay Fiserv the fees and other charges for the
Item Processing Services specified in Exhibit B - 2. Fiserv agrees to give at
least thirty (30) days' notice to Client of any changes in the rules and
procedures established for processing items in the Exhibit of costs, fees, and
charges, unless such changes are caused by changes made by the Federal Reserve
System or otherwise beyond the control of Fiserv, not permitting Fiserv to give
such advance notice. Fiserv reserves the right to make such changes without
notice to the Exhibits as may be necessary to cover any increases in the costs
and charges of the Federal Reserve System or in other costs and charges beyond
the Fiserv's control, including changes required by applicable law or regulatory
activity. The fees listed in Exhibit B - 2 may be changed annually on the
anniversary date of this Exhibit upon 30 days notice to Client. Each change
shall be limited to the change in the U.S. Department of Labor, Consumer Price
Index for All Urban Households ("CPI") for the 12-month period preceding the
anniversary date. Fiserv will deliver a revised Exhibit B - 2 to Client with the
notification of the fee change.
3. No Fiduciary Relationship. Fiserv shall perform such Item Processing
Services for which Fiserv shall subscribe as agent of Client, and Fiserv shall
not have by reason of this Agreement a fiduciary relationship with respect to
Client.
4. Lost, Destroyed, and Misplaced Items. Fiserv assumes no liability
for any item lost, destroyed, or misplaced while in transit before the item
physically arrives at the premises of Fiserv and is received by Fiserv. in the
event any items are lost destroyed, or misplaced, and such event is not due to
gross negligence or intentional misconduct by Fiserv, Client shall be solely
responsible for the costs and expenses incurred by Fiserv in reconstructing any
such items and for any damages or other losses that may be incurred by Fiserv
due to the collection of such items. In the event Fiserv negligently loses,
destroys, or misplaces deposited items after acceptance of said deposit, Fiserv
shall be liable only for the reasonable reconstruction costs of the deposit.
Reasonable reconstruction costs shall be only those costs that arise from the
reconstruction of a microfilmed deposit. Fiserv shall not be liable for the
reconstruction costs associated with a deposit for which Client can provide a
microfilmed record of such item(s) contained in the deposit. In no event shall
Fiserv be liable for the face value of any lost or missing deposit item(s).
5. Governmental Regulation. This Exhibit shall be governed by and is
subject to: the applicable laws, regulations, rules, terms and conditions, as
presently in effect or hereafter amended or adopted, of the United States of
America, the State of Wisconsin, the Federal Reserve Board, the Federal Reserve
Banks, the Federal Housing Finance Board, and any other governmental agency or
instrumentality having jurisdiction over the subject matter of this Exhibit.
Client agrees to abide by such requirements and to execute and deliver such
agreements, documents, or other forms as may be necessary to comply with the
provisions hereof, including, without limitation, agreements to establish Fiserv
as Client's Agent for purposes of delivery of items processed hereunder from or
to the Federal Reserve Banks. Any such agreements shall be made a part of this
Agreement and are incorporated herein. A change or termination of such laws,
regulations, rules, terms, conditions, and agreements shall constitute,
respectively, a change or termination as to this Exhibit.
6. Client Responsibilities. Client shall maintain adequate supporting
materials (i.e. exact copies of the items, records, and other data supplied to
Fiserv) in connection with the provision of Item Processing Services. Client
shall provide written notice of confirmation and/or verification of any
instructions given by Client, its agents, employees, officers, or directors to
Fiserv in connection with Fiserv's provision of Item Processing Services.
7. Regulatory Authority. Client data and records shall be subject to
regulation and examination by government supervisory agencies to the same extent
as if such information were on Client's premises.
8. Forms and Supplies. Client assumes and will pay the charges for all
customized forms, supplies, and delivery charges. Custom forms ordered through
Fiserv will be subject to the administrative fee set forth in Exhibit B - 2.
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Exhibit B - 1
Item Processing Services
Fiserv will provide Client the following Item Processing Services:
1. INCLEARING: Client authorizes Fiserv to receive Client's
inclearing items each business day from the Federal Reserve Bank, local
clearinghouse, and, in the case of same day settlement, from presenting banks.
(a) Fiserv will balance the inclearing items to Client's cash
letters, capture the items on magnetic media, microfilm, and
transmit the account information to Client's account
processing servicer.
(b) Based on the agreement of Fiserv and Client, all inclearing
items shall be: (i) stored by Fiserv and returned to Client at
each statement cycle date; (ii) stored by Fiserv for future
statement rendering; or (iii) returned to Client.
(c) Unless otherwise agreed in writing, Fiserv will not check
signatures.
2. PROOF: On each business day (excluding Saturdays, Sundays, and
holidays), Client will deliver to the Fiserv Processing Center checks and other
items deposited to accounts with Client, checks and other items drawn on Client
accounts presented for encashment, and transactional entries generated by
Client, such as tellers' cash tickets, general ledger entries, and loan entries.
(a) Client agrees to MICR encode documents to meet Fiserv
specifications (ABA and Account Numbers and Transaction
Codes).
(b) Client agrees to microfilm all items submitted to Fiserv.
(c) Client agrees that all transactional entries involving
tellers' cash tickets, general ledger entries, or loan entries
shall be in balance, and that Fiserv may return to Client
unprocessed any transactional entries that are not in balance.
(d) Client agrees to segregate all items into batches not to
exceed 3" in depth and to identify each such batch with a
batch header meeting Fiserv specifications.
(e) From the items submitted to Fiserv, Fiserv shall retrieve such
"on-us" information as may be necessary for the proper
accounting of the items and shall transmit this information to
Client's account processing servicer through telephone lines
or by such other means as Fiserv may from time to time deem
appropriate.
(f) Client authorizes Fiserv to create ledger suspense entries,
deposit corrections, or other such entries to balance
transactions, except for those transactions outlined in
sub-paragraph (c) above, as may be necessary to the efficient
processing of the items.
(g) Unless otherwise agreed in writing, Fiserv will not check
signatures.
(h) After Fiserv has completed the process of retrieving and
transmitting to Client's account processing servicer the
information necessary for processing, all items not drawn
against Client shall be forwarded for collection to the
Federal Reserve Bank or to such correspondent banks as Client
may reasonably designate in writing to Fiserv.
(i) As agreed by Fiserv and Client, all items drawn against Client
shall be: (i) stored by Fiserv and returned to Client at each
statement cycle date; (ii) stored by Fiserv for future
statement rendering; or (iii) returned to Client.
(j) All internally generated items shall be returned to Client or
held by Fiserv in accordance with Client's written
instructions.
3. ENCODING: Fiserv will encode the dollar amount on all items
needing encoding and presented to Fiserv as part of the PROOF function described
above.
(a) Fiserv may encode additional fields, such as account numbers,
deposit ticket totals or other items as specified by Client.
Any such encoding will be according to terms agreed to by
Fiserv.
4. EXCEPTION ITEM PROCESSING: One day after receipt of items,
Fiserv will perform an automated exception item pull for all items identified by
Client's account processing system for exception pull (NSF's, holds, large
dollars, or other criteria mutually agreed to by Client and Fiserv).
(a) Client's account processing servicer will provide an exception
item file to Fiserv after posting and updating of customer
accounts and on a mutually agreed schedule.
(b) Fiserv will either reject or pay exception items in accordance
with instructions, either written or oral, from Client's
authorized officer(s) or employee(s).
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(c) In the event no instructions are received, Fiserv will follow
Client's standing orders for exceptions, which will be
provided in writing by Client.
(d) For items to be returned, Fiserv will: (i) stamp and qualify
the items and return them to the Federal Reserve Bank; or (ii)
provide other services as agreed by Fiserv and Client.
5. STATEMENT RENDERING: Fiserv will store all checks, drafts, and
other orders for the payment of money drawn against accounts at Client. At each
Client account cycle date, Fiserv will sort the items by account, match them
with the monthly account statement, and mail to the statement address.
(a) Client will arrange for delivery of account statements to
Fiserv at Client's cost.
(b) Fiserv will add inserts to statements upon instructions from
Client.
(c) Fiserv will apply proper postage, which will be pre-paid
monthly on an estimated basis.
(d) Fiserv may, at its expense, arrange for statements to be
pre-sorted to reduce postage costs. In such event, Client will
be billed standard postage charges.
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Exhibit C
EFT Services
Client agrees with Fiserv as follows:
1. Services. Fiserv will provide Client the EFT Services (the "EFT
Services") specified in Exhibit C - 1.
2. Network Support Services. Fiserv will provide Network Support
Services (monitoring, service, and maintenance for equipment) in accordance with
instructions supplied by the Client. If any or all of the communication network
should fail, Fiserv or its designated agents will locate the problem and correct
any malfunction not associated with equipment or circuits provided by common
carriers. If the problem is located in the equipment or circuits of the common
carriers, Fiserv will contact the common carriers and request that the problem
be corrected. Maintenance fees incurred by Fiserv for repairs caused by faulty
electrical power, inadequate physical facilities, physical abuse, or other
Client-supplied or -controlled factors will be reimbursed by Client.
3. Fees. Client shall pay Fiserv the fees and other charges for the EFT
Services specified in Exhibit C - 2.
4. Responsibility for Accounts. Client shall be responsible for
balancing its accounts each business day and notifying Fiserv immediately of any
errors or discrepancies. Provided that Client immediately notifies Fiserv of any
discrepancy in Client's accounts, Fiserv shall, at its own expense, promptly
recompute accounts affected by discrepancies solely caused by Fiserv computer or
software systems or provide for another mutually agreeable resolution. Fiserv
will use its commercially reasonable efforts to correct errors attributable to
Client or other Client third party servicers.
5. Reports. Fiserv will provide output reports to Client for daily,
weekly, monthly, and annual transactions.
6. Backup Records. Fiserv currently retains historical files at a
location separate from the data center sufficient to recreate files for the most
recent week- and month-end. A daily transaction log of all Client transactions
for the most recent ten business days will also be maintained at this location.
7. Hours of Operation. The EFT Services will be available for use by
Client during standard Fiserv business hours, excluding company holidays, as
specified in Exhibit C - 3.
8. Hardware. (a) Client will obtain written approval from Fiserv prior
to connecting any equipment to the data communication equipment provided by
Fiserv. Equipment, if any, connected to the Fiserv System must be configured in
a manner acceptable to Fiserv. Client agrees to pay Fiserv for the testing and
acceptance of such equipment by Fiserv at its then current rates.
(b) Client shall at all reasonable times permit the authorized
personnel of Fiserv and the equipment manufacturers to have access to any Fiserv
owned or leased equipment provided hereunder, and shall permit removal of such
equipment upon termination of this Exhibit.
9. Protection of Data. Fiserv has developed an operations backup
center, for which Client has agreed to pay the charges indicated in Exhibit A -
2. Fiserv tests the procedure periodically to ensure compliance. Copies of
transactions files are maintained by Fiserv off premises in secured vaults.
10. Regulatory Compliance. (a) Client is solely responsible for
ascertaining that its use of EFT Services complies with all applicable state and
federal statutory and regulatory requirements. Fiserv agrees, however, to
monitor such applicable requirements, and to make changes in the EFT Services as
Fiserv believes is necessary to bring the EFT Services into compliance.
(b) Upon the written request of Client or a governmental regulatory
authority, Fiserv shall make output available to such regulatory authority for
purposes of audits and supervisory examinations of Client. The Client shall pay
Fiserv its then current rate for any time devoted to such examination, audit,
consulting, or other similar related effort.
11. On-line Security. Fiserv will provide Client access, after the
execution of appropriate "on-line" security measures, to allow Client to perform
Cardholder maintenance on Client Files in the Fiserv System.
12. Network Agreement. Fiserv provides access to electronic fund
transfer networks for the purpose of participating in the exchange of
transactions on an inter-network basis. Client may participate in such networks
subject to the following terms and conditions:
(a) Client will enter into an agreement with each such network in which
Client elects to participate, and will operate within and abide by the operating
rules established by each such network, and pay any associated fees imposed by
each such network; and
(b) The clearing of transactions and reconciliation of payments will be
in accordance with settlement procedures established between Fiserv and each
such network.
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Exhibit C - 2
EFT Services Fees
Fiserv will provide Client the following EFT Services at the fees and
prices indicated:
Notwithstanding the exceptions noted below, the following services are included
in the Base Services Fee minimum of $2,000 per month.
ATM PROCESSING
- Transactions 1st 1,000 - Additional at $.1717 each
- Pulse Interface
- ATM Driving 1st ATM - Additional at $224 each
- Cirrus Network Connection
- Pix Adjustment System
- End Point Settlement
- Surcharging 1st ATM - Additional at $35 each
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Exhibit C - 3
Hours of Operation
Fiserv will provide access to EFT Services 24 hours a day, 365 days per
year, except for planned downtime reserved for scheduled maintenance.
Client support assistance will be available during normal business
hours, Monday through Friday, with the exception of the following holidays: New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and
Christmas Day. When a holiday fells on a weekend, Fiserv will observe the
holiday schedule as published by the Federal Reserve.
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ADDENDUM TO AGREEMENT
In consideration of the Agreement between Fiserv Solutions, Inc.
("Fiserv") and Franklin Bank, SSB (the "Client") dated 2-28-99, 1998 (the
"Agreement"), the provisions of which are adopted herein by reference, Fiserv
and Client agree as follows:
1. All terms, condition, warranties, and obligations contained
in the Agreement, whether made by or binding upon
either party, shall be contingent upon Client's
receipt of approval from the State Office of
Financial Institutions and the FDIC authorizing
Client to enter into a binding, long-term contract.
In the event that such approval is not obtained, the
Agreement shall become void in its entirety.
2. Notwithstanding the foregoing, Client agrees to reimburse
Fiserv for any reasonable expenses actually incurred
in accordance with the Agreement.
3. In accordance with Paragraph 15(b) of the Agreement, this
Addendum shall constitute a modification of the
Agreement, and in the event of a conflict between the
provisions of the Agreement and this Addendum, the
terms and provisions of this Addendum shall control.
4. In consideration for the additional four (4) months added
to the five (5) year term agreement as indicated in
paragraph I, Term, the monthly fee of $2,470 ($3,209
- $739) shall be waived for four (4) months.
AGREED TO AND EXECUTED BY THE PARTIES DULY AUTHORIZED
REPRESENTATIVES ON THE DATE(S) INDICATED BELOW:
Franklin Bank, SSB Fiserv Solutions, Inc.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ J. Xxxx Xxxxxx
--------------------------- -------------------------------
Name: XXXXXX X. XXXXXXX Name: J. Xxxx Xxxxxx
Title: PRESIDENT Title: Vice President
Date: 2-25-99. Date: 2-27-99
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[FRANKLIN BANK LOGO]
February 25, 1999
Mr. Xxx Xxxxxxxx
President
FiServ, Houston Center
0000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-000
Dear Xx. Xxxxxxxx:
I am attaching this letter to the executed agreement between FiServ Solutions,
Inc. and Franklin Bank, SSB, in accordance with the language in paragraph 1
(Term). Please accept this notice of non-renewal to satisfy the requirements to
void an automatic renewal of the five (5) year initial term of our agreement.
Yours truly,
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
President & CEO
0000 Xxxxxxxxx Xxxxxx - Xxxxxx, Xxxxx 00000
(000) 000-0000 - Fax (000) 000-0000
Agreement for fed line.
ELECTRONIC REPORTING AGREEMENT
Franklin Bank, ssb (Depository Institution),
____________________________________________________ (Processor - if
applicable), and the Federal Reserve Bank of Dallas, located in Dallas, Texas
(Reserve Bank) hereby enter into this Agreement for Depository Institution's use
of Reserve Bank's electronic reporting systems. The complete agreement shall
consist of this Agreement and any amendments executed as hereinafter provided.
The parties agree as follows:
1. Depository Institution and/or its Processor shall use Reserve
Bank's electronic submission system for the sole purpose of
transmitting to Reserve Bank statistical reports authorized to
be submitted to Reserve Bank under applicable laws and
regulations. Reserve Bank agrees to accept the electronic
entries according to the terms and conditions set forth
herein. Except as otherwise stated in this Agreement,
Depository Institution and/or its Processor each agree to use
electronic submission for filing initial data for reports
specified by the Reserve Bank.
2. The Reserve Bank will notify Depository Institution and/or its
Processor of the statistical reports which may be
electronically submitted and will provide the instructions
necessary for the submission of each report.
3. The software used by Depository Institution and/or its
Processor for electronic submission of statistical reports
must meet and continue to meet the technical specifications
and other standards provided by Reserve Bank. Depository
Institution and/or its Processor each agree to participate in
the tests specified by Reserve Bank prior to live report
submission or at any time that software or hardware changes
are made.
4. This Agreement shall be subject to applicable state and
federal laws including but not limited to, the following
provisions, as amended from time to time: Section 19 of the
Federal Reserve Act, 12 U.S.C. sections 248 (a) and 461;
Regulation D of the Board of Governors of the Federal Reserve
System, 12 C.F.R. 204; and, the Reserve Bank's Bulletins or
Operating Circular Nos. 4 and 16.
5. While this Agreement is in effect, Depository Institution
and/or its Processor each agree to exclusively use the
electronic reporting system when reporting to Reserve Bank.
Depository Institution and/or its Processor shall submit a
hard copy of such reports only if Reserve Bank requests a hard
copy, or if Depository Institution and/or its Processor is
unable to transmit the data. If Reserve Bank requests that
hard copy be filed, Depository Institution and/or its
Processor shall maintain a duly executed report in accordance
with the requirements of Paragraph 6 below. Depository
Institution and/or its Processor each further agree to notify
Reserve Bank in advance by telephone if unable to
electronically transmit a statistical report, and, to timely
submit such report instead via hard copy.
6. Contemporaneously with electronic transmission of data
pursuant to this Agreement, or if otherwise requested by
Reserve Bank, Depository Institution and/or its Processor each
agree to complete and maintain in its files a hard copy of a
duly executed report for each report submitted in accordance
with this Agreement. The hard copy shall contain an official
signature certifying, based on actual knowledge of the data
transmitted, that the reported information is correct. The
hard copy shall be maintained according to the retention
schedule (a copy of which is attached as Addendum A) specified
by the Reserve Bank, which may be revised from time to time by
Reserve Bank without prior notice to Depository Institution or
its Processor. Reserve Bank will notify Depository Institution
or its Processor in writing of revisions to the retention
schedule. Such hard copy shall be available to Reserve Bank
and to Depository Institution's primary regulatory authority
at any time upon request. The requirements of this paragraph
shall survive termination of this Agreement.
7. Depository Institution and/or Processor each expressly
recognize that Reserve Bank considers any and all statistical
reports conveyed to Reserve Bank electronically as being
authentic and fully authorized as if the same were in writing
and signed by Depository Institution's duly authorized
officer. All requirements of law and other statements on the
related reporting form shall apply to information submitted
electronically.
8. The information transmitted electronically by Depository
Institution and/or its Processor shall be confidential
information. Reserve Bank's disclosure of the confidential
information shall be limited to the extent that disclosure or
release is made to the Board of Governors of the Federal
Reserve System or pursuant to any applicable laws or
regulations.
9. Depository Institution and/or its Processor understand that
Reserve Bank may find it necessary to make additions,
deletions, or changes to any report on short notice and will
make every attempt, but do not guarantee, to provide revised
specifications or modified software so that electronic report
submission is not interrupted.
10. Depository Institution is responsible for the timeliness and
accuracy of data transmitted by Processor as if Depository
Institution had transmitted the data itself. Depository
Institution shall respond directly to the Reserve Bank on
questions pertaining to reports submitted under this
agreement, if any.
11. Reserve Bank may terminate this Agreement at any time by
giving written notice to the president of Depository
Institution. Depository Institution may terminate this
Agreement by giving Reserve Bank 30 days written notice prior
to the date of termination. Depository Institution's notice
shall be sent to:
Electronic Reporting Agreement - Page 2
Statistics Department
Federal Reserve Bank of Dallas
P. O. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
12. This Agreement shall to governed by the laws of the State of
Texas.
13. The waiver by Reserve Bank of my breach or violation of any
provision of this Agreement shall not be a waiver of such
provision or of any subsequent breach of violation thereunder.
AGREED: AGREED:
Federal Reserve Bank of Dallas Depository Institution
Printed Name Franklin Bank, ssb
Authorized
Signature: /s/ Xxxxx Xxxxxxxx Signature: /s/ Xxx Xxxxxxx
------------------ ---------------
Print Name: XXXXX XXXXXXXX Print Name: Xxx Xxxxxxx
Title: STATISTICS OFFICER Title: Vice President/Controller
Date: 10/20/2000 Date: 10-19-2000
ABA#: 0000-0000-0
AGREED:
Processor, Printed Name _____________________
Authorized Signature: _______________________
Print Name: _________________________________
Date: _______________________________________
Electronic Reporting Agreement - Page 3
ELECTRONIC REPORTING AGREEMENT
The reporting institution named below agrees to retain a
signed and certified hard copy of any report filed with the Reserve Bank via
electronic submission. The retention schedule for electronically submitted
reports is as follows:
Report of Transaction Accounts, Other
Deposits and Vault Cash (FR 2900) 5 years
Report of Certain Eurocurrency Transactions
(FR2950 or FR 2951) 5 years
Electronic Reporting Agreement - Page 4
