BY AND BETWEEN FIRST MIDWEST BANCORP, INC.
MARSHALL & ILSLEY CORPORATION
acting through its division
M&I DATA SERVICES
DATED AS OF
JULY 1, 1999
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TABLE OF CONTENTS
Page 1. DEFINITIONS 1
Interpretation 6 2. TERM 6
Initial Term 6
Extensions 6 3. APPOINTMENT 7
Performance by M&I Affiliates or Subcontractors 7
Third Party Products/Services 7
Proper Instructions 7 4. CONVERSION 7 5. BANKING APPLICATION SERVICES 7
ADP Services 7
New Services 7
Automated Clearing House Services 8
Trust Services 8 6. RETAIL DELIVERY SYSTEMS AND SERVICES 8
Branch Automation Systems 8 7. EFD PROCESSING SERVICES 8
EFD Services 8 8. FEES 8
Fee Structure 8
EFD Services 9
Training and Education 9
Excluded Costs 9
Disputed Amounts 9
Terms of Payment 10
Modification of Terms and Pricing 10 9. PERFORMANCE WARRANTY/EXCLUSIVE REMEDY/DISCLAIMER OF ALL OTHER WARRANTIES 10
Performance Warranty 10
Performance Warranty Exclusions 10
Notice of and Correction of Defects 10
DISCLAIMER OF ALL OTHER WARRANTIES 11 10. MODIFICATION OR PARTIAL TERMINATION 11
Modifications to Services 11
Partial Termination by M&I 11
Partial Termination by Customer 12
Ownership and Proprietary Rights 12
Millennium Modifications 12 11. TERMINATION 13
Early Termination 13
For Cause 13
For Insolvency 13
For Force Majeure 13 12. SERVICES FOLLOWING TERMINATION 14
Termination Assistance 14
Continuation of Services 14
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Equitable Relief 14
Exclusion of Incidental and Consequential Damages 14
Maximum Damages Allowed 15
Statute of Limitations 15
Economic Loss Waiver 15
Liquidated Damages 15
Essential Elements 16 14. INSURANCE AND INDEMNITY 16
Indemnification Procedures 17 15. DISPUTE RESOLUTION 17
Representatives of Parties 17
Continuity of Performance 18 16. REPRESENTATIONS AND WARRANTIES 18
By M&I 18
By Customer 18 17. CONFIDENTIALITY AND OWNERSHIP 19
Customer Data 19
M&I Systems 19
Confidential Information 19
Obligations of the Parties 20
Security 20 18. MANAGEMENT OF PROJECT 20
Account Representatives 20
Reporting and Meetings 20
Development Projects and Technical Support 21 19. REGULATORY COMPLIANCE 22 20. DISASTER RECOVERY 23
Services Continuity Plan 23
Resumption of Services 23
Annual Test 23 21. GENERAL TERMS AND CONDITIONS 23
Transmission of Data 23
Equipment and Network 24
Reliance on Data 24
Data Backup 24
Balancing and Controls 24
Use of Services 24
Regulatory Assurances 25
IRS Filing 26
Future Acquisitions 26 22. MISCELLANEOUS PROVISIONS 27
Governing Law 27
Entire Agreement; Amendments 27
Relationship of Parties 28
Attorneys' Fees and Costs 29
Financial Statements 29
No Third Party Beneficiaries 29
Force Majeure 30
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Waiver of Jury Trial 30
Finder' s Fee 31
IBS Software Purchase 31
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5.1 ADP Services Schedule 5.3 ACH Services Terms and Conditions 5.4 Trust Services 7.1 EFD Services 8.1 Fee Schedule 9.1 ADP Performance Standards 11.1 Termination Fee 18.1 Account Representatives
Exhibits A Attorney-in-Fact Appointment B Affidavit
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OUTSOURCING AGREEMENT This Outsourcing Agreement (" Agreement" ) is made as of the 1st day of July, 1999, by and between First Midwest Bancorp, Inc., a Delaware corporation (" Customer" ) and Marshall & Ilsley Corporation, a Wisconsin corporation, acting through its division, M&I Data Services (" M&I" ). In consideration of the payments to be made and services to be performed hereunder, the parties agree as follows: 1. DEFINITIONS
1.1 Background .
This Agreement is being made and entered into with reference to the following facts: A. Customer provides systems development and operations, data processing, telecommunications and other information technology services for itself, and on behalf of its customers.
B. M&I is a provider of data processing, systems development and operations, corporate support and item processing, home banking, internet banking, retail delivery services, trust data processing, and other services. M&I desires to perform for Customer the outsourcing services described in this Agreement. C. M&I currently provides data processing services to Customer under a prior agreement and the parties desire to continue the relationship under this Agreement. This Agreement documents the terms and conditions under which Customer agrees to purchase and M&I agrees to provide the Services.
1.2 Definitions .
The following terms shall have the meaning ascribed to them in this Section 1.2:
A. " Account Representative" shall have the meaning set forth in Section 18.1.
B. " ADP Services" shall mean the Accounts Data Processing Services set forth in attached Schedule 5.1 .
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C. " Affiliate" shall mean, with respect to a party, any Entity at any time Controlling, Controlled by or under common Control with, such party.
D. " Branch Automation Agreement" shall mean the PCTeller License between M&I and Customer relating to the license and implementation of M&I' s proprietary branch automation software.
E. " Change in Control" shall mean any event or series of events by which (i) any person or entity or group of persons or entities shall acquire Control of another person or entity or (ii) in the case of a corporation, during any period of 12 consecutive months commencing before or after the date hereof, individuals who at the beginning of such 12-month period were directors of such corporation shall cease for any reason to constitute a majority of the board of directors of such corporation.
F. " Confidential Information" shall have the meaning set forth in Section 17.3 of this Agreement.
G. " Contract Year" shall mean successive periods of twelve months, the first of which shall commence on the Effective Date.
H. " Control" shall mean the direct or indirect ownership of over 50% of the capital stock (or other ownership interest, if not a corporation) of any Entity or the possession, directly or indirectly, of the power to direct the management and policies of such Entity by ownership of voting securities, by contract or otherwise. " Controlling" shall mean having Control of any Entity and " Controlled" shall mean being the subject of Control by another Entity. I. " Core Services" shall mean services provided by M&I' s Deposit System, Loan System and Customer Information System.
J. " Customer" shall mean Customer and all Affiliates of Customer for whom M&I agrees to provide Services under this Agreement.
K. " Customer Data" shall have the meaning set forth in Section 17.1 of this Agreement.
L. " Damages" shall mean all direct, actual and verifiable losses, liabilities, damages and claims and related costs and expenses (including reasonable attorneys' fees and court costs, costs of investigation, litigation,
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settlement, judgment, interest and penalties). M&I understands and agrees that Damages recoverable by Customer shall include (a) Customer' s reasonable costs and expenses of conversion to another provider; and (b) the unearned portion of any license fee paid by Customer to M&I to license any M&I owned software, provided that Customer returns to M&I all copies of the software and deletes the software from Customer' s systems. Customer understands and agrees that, for purposes of the foregoing, software license fees will be earned by M&I on a straight line basis from the date of the applicable license agreement through the later of (i) the last day of the Initial Term of the Agreement, or (ii) the date falling four (4) years after the date of the applicable license agreement. ( M. " Effective Date" shall mean the date first set forth above. N. " Effective Date of Termination" shall mean the last day on which M&I provides the Services to Customer (including any Termination Assistance).
0. " Eligible Provider" shall have the meaning as set forth in Section 3.1 of this Agreement.
P. " Entity" means an individual or a corporation, partnership, sole proprietorship, limited liability company, joint venture or other form of organization, and includes the parties hereto.
Q. " Estimated Remaining Value" shall mean the number of calendar months remaining between the Effective Date of Termination and the last day of the contracted-for Term, multiplied by the average of the monthly Fees (but in any event no less than the Monthly Base Fee) payable by Customer during the twelve (12) month period prior to the event giving rise to termination rights under this Agreement. In the event the Effective Date of Termination occurs prior to expiration of the First Contract Year, the estimated monthly fees set forth in the Fee Schedule shall be substituted for the average monthly fees described in the preceding sentence.
R. " Expenses" shall mean any and all reasonable and direct expenses incurred by M&I for any postage, supplies, materials, travel and lodging provided to or on behalf of Customer under this Agreement.
S. " Federal Regulator" shall have the meaning set forth in Section 21.7. First Midwest Renew 10 3
T. " Fee Schedule" shall have the meaning set forth in Section 8.1 of this Agreement.
U. " Initial Services" shall mean those Services requested by Customer from M&I under this Agreement prior to the Commencement Date. The Initial Services requested as of the Effective Date are set forth in the schedules attached hereto, which shall be modified to include any additional services requested by Customer during the Conversion Period.
V. " Initial Term" shall have the meaning set forth in Section 2.1 of this Agreement. W. " Legal Requirements" shall have the meaning set forth in Section 19(A) of this Agreement. X. " LU" shall have the meaning as set forth in Section 8.4 of this Agreement. Y. " M&I Proprietary Materials and Information" shall mean the M&I Software and all source code, object code, documentation (whether electronic, printed, written or otherwise), working papers, non-customer data, programs, diagrams, models, drawings, flow charts and research (whether in tangible or intangible form or in written or machine readable form), and all techniques, processes, inventions, knowledge, know-how, trade secrets (whether in tangible or intangible form or in written or machine readable form), developed by M&I prior to or during the Term of this Agreement, and such other information relating to M&I or the M&I Software that M&I identifies to Customer as proprietary or confidential at the time of disclosure.
Z. " M&I Software" shall mean the software owned by M&I and used to provide the Services.
AA. " Millennium Ready" shall mean the ability of the M&I Software to accurately process date/time data (including calculating, compare and sequence) from, into and between the years 1999 and 2000, including leap year calculations, to the extent that other information technology, used in combination therewith, properly exchanges date/time data with the M&I Software. BB. " New Services" shall mean any services which are not included in the Initial Services. Upon mutual agreement of the parties, New Services shall be included in the term " Services."
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CC. " Operations Center" shall mean the datacenter used by M&I to provide the ADP Services under this Agreement.
DD. " Performance Standards" shall mean those service levels set forth in attached Schedule 9.1 for the provision of ADP Services.
EE. " Performance Warranty" shall have the meaning, including the exclusions and exclusive remedy, set forth Article 9 of this Agreement.
FF. " Plan" shall have the meaning set forth in Section 20.1 of this Agreement.
GG. " Proper Instructions" shall mean those instructions sent to M&I in accordance with Section 3.3 of this Agreement.
HH. " Services" shall mean the services, functions and responsibilities described in this Agreement to be performed by M&I during the Term and shall include New Services which are agreed to by the parties in writing. II. " Taxes" shall mean any manufacturers, sales, use, gross receipts, excise, personal property or similar tax or duty assessed by any governmental or quasi-governmental authority upon or as a result of the execution or performance of any service pursuant to this Agreement or materials furnished with respect to this Agreement, except any income, franchise, privilege or like tax on or measured by M&I' s net income, capital stock or net worth.
JJ. " Term" shall mean the Initial Term and any extension thereof, unless this Agreement is earlier terminated in accordance with its provisions.
KK. " Termination Assistance" shall have the meaning set forth in Section 12.1 of this Agreement.
LL. " Termination Fee" shall have the meaning set forth on attached Schedule 11.1 .
MM. " Third Party" shall mean any Entity other than the parties or any Affiliates of the parties.
NN. " User Manuals" shall mean the documentation provided by M&I to Customer which describes the features and functionalities of each of the ADP Services as modified and updated by the customer bulletins distributed by M&I from time to time. First Midwest Renew 10 5
1.3 References . In this Agreement and the schedules and exhibits attached hereto, which are hereby incorporated and deemed a part of this Agreement, references and mention of the word " include" and " including" shall mean " includes, without limitation" and " including, without limitation" , as applicable.
1.4 Interpretation . In the event of a conflict between this Agreement and the terms of any exhibits and schedules attached hereto, the terms of the schedules and exhibits shall prevail and control the interpretation of the Agreement. The exhibits and schedules together with the Agreement shall be interpreted as a single document. 2. TERM
2.1 Initial Term . This Agreement shall commence on the Effective Date and continue for a period of sixty-six (66) months (" Initial Term" ).
2.2 Extensions . Unless this Agreement has been earlier terminated, at least one (1) year prior to the expiration of the Initial Term, M&I shall submit to Customer a written proposal for renewal of this Agreement. Customer will respond to such proposal within three (3) months following receipt and inform M&I in writing whether or not Customer desires to renew this Agreement. If Customer informed M&I in writing that Customer does not desire to renew this Agreement, this Agreement shall terminate on the last day of the Initial Term. If Customer does not inform M&I in writing that Customer does not desire to renew this Agreement and if M&I and Customer are unable to agree upon the terms for renewal of this Agreement at least six (6) months prior to the expiration of the Initial Term, then this Agreement shall be automatically renewed for one (1) twelve-month period at M&I' s then-current standard prices. Thereafter, this Agreement shall expire unless further renewed in writing by the parties.
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3.1 Performance by M&I Affiliates or Subcontractors . Customer understands and agrees that Marshall & Ilsley Corporation is a bank holding company and that the actual performance of the Services may be made by the divisions or subsidiaries of Marshall & Ilsley Corporation, Affiliates Controlled by Marshall & Ilsley Corporation, or subcontractors of any of the foregoing Entities (collectively, the " Eligible Providers" ). For purposes of this Agreement, performance of the Services by any Eligible Provider shall be deemed performance by Marshall & Ilsley Corporation itself. M&I shall remain fully responsible for the performance or non-performance of each Eligible Provider under this Agreement, to the same extent if M&I itself performed or failed to perform such services.
3.2 Third Party Products/Services . The parties acknowledge that certain services and products necessary for the performance of the Services are being, and in the future may be, provided by Third Parties who will contract directly with Customer. M&I shall have no liability to Customer for information and products supplied by, or services performed by, such Third Parties in conjunction with the Services. 3.3 Proper Instructions . " Proper Instructions" shall mean those instructions sent to M&I by letter, memorandum, telegram, cable, telex, telecopy facsimile, computer terminal, e-mail or other " on line" system or similar means of communication or given orally over the telephone or given in person by the person executing this Agreement or his designee. Proper Instructions shall specify the action requested to be taken or omitted.
4. CONVERSION INTENTIONALLY OMITTED, APPLIES TO NEW CUSTOMERS ONLY
5. BANKING APPLICATION SERVICES 5.1 ADP Services . M&I agrees to provide Customer with the ADP Services in accordance with the applicable User Manuals and this Agreement.
5.2 New Services . If Customer wishes to receive any New Service Customer shall notify M&I and the parties shall implement the same in accordance with a mutually acceptable schedule. If the New Service is not identified on M&I' s then-current standard price list, Customer shall submit a
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written request to M&I in accordance with Section 18.3 of this Agreement. Nothing contained herein shall obligate M&I to develop a New Service for Customer. 5.3 Automated Clearing House Services . The automated clearing house services (" ACH Services" ) to be provided by M&I shall be subject to the terms and conditions set forth on attached Schedule 5.3 .
5.4 Trust Services . The trust processing services (" Trust Services" ) to be provided by M&I shall be subject to the terms and conditions set forth on attached Schedule 5.4 .
6. RETAIL DELIVERY SYSTEMS AND SERVICES
6.1 Branch Automation Systems . M&I agrees to provide the licenses, products, interfaces and network management associated with the automation of Customer' s branch offices, in accordance with the PCTeller license Agreement. 7. EFD PROCESSING SERVICES
7.1 EFD Services . The electronic funds delivery services (" EFD Services" ) to be provided by M&I shall be subject to the terms and conditions set forth on attached Schedule 7.1 . 8. FEES
8.1 Fee Structure . Schedule 8.1 attached hereto (the " Fee Schedule" ) sets forth the costs and charges for the Services and Customer agrees to pay M&I the fees specified in the Fee Schedule for the Services rendered by M&I. These costs and charges are included in one or more of the following categories:
(i) one-time fees associated with any conversion;
(ii) a minimum monthly fee for certain recurring, aggregated data processing services based on stated volumes (the " Monthly Base Fee" );
(iii) an hourly or daily fee for programming, training and related Services requested by Customer; and (iv) fees for New Services not included in the foregoing categories.
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8.2 EFD Services . In addition to the charges specified on the Fee Schedule, Customer shall be responsible for all interchange and network provider fees and all dues, fees and assessments established by and owed to Visa and/or MasterCard for the processing of Customer' s transactions, and for all costs and fees associated with changes to ATM (as defined in Schedule 7.1 ) protocol caused by Customer' s use of the EFD Services.
8.3 Training and Education .
A. M&I shall provide training as requested by Customer and agreed to by M&I. The sessions shall be held at a location mutually agreed upon by the parties. Customer shall be responsible for all Expenses incurred by the participants and M&I' s trainers in connection with such education and training. If Customer requests that training be conducted at a non-M&I facility, Customer shall be responsible for additional fees as quoted by M&I.
B. M&I will provide to Customer, at no charge, one set of each of the User Manuals. When the User Manuals are updated, M&I will provide the updates to Customer at no additional charge. Additional sets of the User Manuals may be purchased by Customer.
8.4 Excluded Costs . The fees set forth in the Fee Schedule do not include shipping and courier costs, telecommunication charges, Expenses, Third Party pass-through charges, workshop fees, training fees, late fees or charges and Taxes.
8.5 Disputed Amounts . If Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the parties, Customer shall pay the amounts due under this Agreement less the disputed amount, and the parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (i) Customer delivers a written statement to M&I on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by Customer, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from Customer that are not in dispute have been paid in accordance with the terms of this Agreement. First Midwest Renew 10 9
8.6 Terms of Payment . All amounts due hereunder shall be paid within thirty (30) days of invoice. Undisputed charges not paid by the due date shall be subject to annual interest at the rate of 12% or the highest rate permitted by law, whichever is lower. Customer shall also pay any collection fees and Damages incurred by M&I in collecting payment of the charges and any other amounts for which Customer is liable under the terms and conditions of this Agreement.
8.7 Modification of Terms and Pricing . All charges for Services shall be subject to annual adjustment as set forth in the Fee Schedule. 9. PERFORMANCE WARRANTY/EXCLUSIVE REMEDY/DISCLAIMER OF ALL OTHER WARRANTIES 9.1 Performance Warranty . M&I warrants that it will provide the ADP Services covered by this Agreement in accordance with the Performance Standards and that it will provide reports to the Customer that are in substantial conformity with the User Manuals, as amended from time to time. THIS PERFORMANCE WARRANTY IS SUBJECT TO THE WARRANTY EXCLUSIONS SET FORTH BELOW IN ARTICLE 9.2 AND THE REMEDY LIMITATIONS SET FORTH BELOW IN ARTICLE 9.3.
9.2 Performance Warranty Exclusions . Except as may be expressly agreed in writing by M&I, M&I' s Performance Warranty does not apply to:
(a) defects, problems, or failures caused by the Customer' s nonperformance of obligations essential to M&I' s performance of its obligations; and/or
(b) defects, problems, or failures caused by an event of force majeure.
9.3 Notice of and Correction of Defects . Customer shall notify M&I in writing of any alleged breach of this Performance Warranty. Upon receipt of such notice, M&I shall have ninety (90) days to correct the alleged breach. During this time period, M&I shall make every reasonable effort, at its own expense, to correct any material defect. Customer shall be responsible for making whatever appropriate adjustments may be necessary to mitigate adverse effects on Customer until M&I corrects the defect. If requested by Customer, M&I will, at M&I' s expense, assist Customer in making such corrections through the most cost-effective means, whether manual, by system reruns or program modifications.
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9.4 DISCLAIMER OF ALL OTHER WARRANTIES . THIS PERFORMANCE WARRANTY, AND THE REPRESENTATIONS IN SECTION 16.1, ARE IN LIEU OF, AND M&I DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS CONTRACT, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT M&I KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING.
9.5 Backup Remedy . If M&I fails to remedy the breach in the time periods specified in Section 9.3 above, Customer may file a claim for Damages pursuant to the dispute resolution procedure set forth in Section 15.1 below and, in addition, terminate the Agreement for cause pursuant to Section 11.2 below.
10. MODIFICATION OR PARTIAL TERMINATION 10.1 Modifications to Services . M&I may modify, amend, enhance, update, or provide an appropriate replacement for the software used to provide the Services, or any element of its systems or processes at any time to: (i) improve the Services or (ii) facilitate the continued economic provision of the Services to Customer or M&I, provided that neither the functionality of the Services nor any applicable Performance Standards are materially adversely affected.
10.2 Partial Termination by M&I . M&I may, at any time, withdraw any of the Services (other than the Services identified on Schedule 5.1 attached hereto) upon providing one hundred eighty (180) days' prior written notice to Customer. M&I may also terminate any of the Services immediately upon any final regulatory, legislative, or judicial determinatio