UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A2
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ________ TO ________
COMMISSION FILE NUMBER 0-24686
FIRST MERCHANTS ACCEPTANCE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of
Incorporation or Organization)
36-3759045
(IRS Employer
Identification No.)
570 Lake Cook Road
Suite 126
Deerfield, Illinois 60015
(Address of Principal Executive Offices, including Zip Code)
(847) 948-9300
(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or
for such shorter period that the registrant was required to file such
reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes X No
Common Stock, $.01 par value, 6,525,519 shares outstanding as of August 1,
1996.
PART II. OTHER INFORMATION
Item 6. (a) Exhibits C See exhibit index following the signature page.
(b) Reports on Form 8-K None.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
FIRST MERCHANTS ACCEPTANCE CORPORATION
/s/ MITCHELL C. KAHN
Mitchell C. Kahn
President and Chief Executive Officer
/s/ THOMAS R. EHMANN
Thomas R. Ehmann
Vice President and Chief Financial Officer
(Principal Financial Officer)
Date: September 13, 1996
EXHIBIT INDEX
Exhibit
Number
Description of Exhibits
10.1*
Amended and Restated First Merchants Acceptance Corporation 1994 Employee
Stock Purchase
Plan, dated May 15, 1996.
10.2*
Amended and Restated First Merchants Acceptance Corporation 1994 Equity
Incentive Plan,
dated May 15, 1996.
10.3*
Purchase Agreement, dated May 10, 1996, among First Merchants Acceptance
Corporation, First
Merchants Auto Receivable Corporation II and Salomon Brothers Inc.
10.4*
Receivables Purchase Agreement, dated May 1, 1996, among First Merchants
Acceptance
Corporation and First Merchants Auto Receivable Corporation II.
10.5*
Sale and Servicing Agreement, dated May 1, 1996, among First Merchants Auto
Trust 1996-A
as Issuer, First Merchants Auto Receivables Corporation II, as Seller, First
Merchants
Acceptance Corporation, as Servicer, and Harris Trust and Savings Bank, as
Trustee and Backup
Servicer.
10.6*
Administrative Agreement, dated May 1, 1996, among First Merchants Auto Trust
1996-A,
First Merchants Acceptance Corporation and First and Harris Trust and Savings
Bank.
10.7*
Amended and Restated Trust Agreement, dated May 1, 1996, among First Merchants
Auto
Receivables Corporation II as Depositor and Chemical Bank Delaware as Owner
Trustee.
10.8*
Indenture between First Merchants Auto Trust 1996-A as Issuer and Harris Trust
and Savings as
Indenture Trustee.
10.9*
Purchase Agreement, dated June 28, 1996, among First Merchants Acceptance
Corporation, First
Merchants Auto Receivable Corporation II and Salomon Brothers Inc, filed with
the Commission
as Exhibit 2 to the Company's Form 8BK dated June 26, 1996, is incorporated
herein by
reference.
10.10*
Receivables Purchase Agreement, dated as of June 1, 1996, between First
Merchants Acceptance
Corporation and First Merchants Auto Receivable Corporation II, filed with the
Commission as
Exhibit 3 to the Company's Form 8BK dated June 26, 1996, is incorporated
herein by reference.
10.11*
Pooling and Servicing Agreement, dated June 19, 1996, among First Merchants
Acceptance
Corporation, as Servicer, First Merchants Acceptance Corporation II, as
Depositor and Harris
Trust and Savings Bank, as Trustee and Backup Servicer filed with the
Commission as Exhibit 4
to the Company's Form 8-K dated June 26, 1996, is incorporated herein by
reference.
10.12
Remote Outsourcing Agreement, dated June 1, 1996, between First Merchants
Acceptance
Corporation and Alltel Financial Information Services, Inc. [Confidential
portions of the Remote
Outsourcing Agreement have been omitted in accordance with Section 24b-2 of
the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and filed separately
with the Securities
and Exchange Commission (the "Commission")].
10.13
Employment Agreement, dated as of June 1, 1996, between First Merchants
Acceptance
Corporation and Mitchell C. Kahn. [Confidential portions of the Employment
Agreement have been omitted in accordance with Section 24b-2 of the Exchange
Act and filed separately with the Commission.]
10.14
Amendment No. 1 dated May 1, 1996 to the Fourth Amended and Restated Loan and
Security
Agreement dated as of February 28, 1996 among First Merchants Acceptance
Corporation,
LaSalle National Bank, as agent, and the other lenders named therein.
11.*
Statement Regarding Computation of Per Share Earnings.
27.*
Financial Data Schedule.
_________________________
* Filed as an Exhibit to the Company's original Quarterly Report on Form
10-Q for the quarter ended June 30, 1996.
REMOTE OUTSOURCING AGREEMENT
by and between
ALLTEL FINANCIAL INFORMATION SERVICES, INC.
and
FIRST MERCHANTS ACCEPTANCE CORPORATION
June 1, 1996
TABLE OF CONTENTS PAGE
1. SCOPE OF SERVICES, DESCRIPTION OF EXHIBITS.1
1.1 SERVICES 1.2 EXHIBITS
2. TERM.
3. RESPONSIBILITIES OF THE PARTIES.
3.1 INPUT FORMS AND OUTPUT FORMS.
3.2 DELIVERY.
3.3 EQUIPMENT AND COMMUNICATION COSTS.
3.4 CLIENT'S INPUT DATA.
3.5 MAINTAINING COPIES OF INPUT.
3.6 COMPATIBILITY OF NON-ALLTEL FINANCIAL SOFTWARE.
3.7 FINANCIAL MANAGEMENT EQUIVALENT SOFTWARE
3.8 ALTERNATIVE THIRD-PARTY SOFTWARE
3.9 AUDIT.
3.10 DAYS OF OPERATION.
4. TIME OF PERFORMANCE.
4.1 Submission of Input.
4.2 Acts of God and Equipment Malfunction.
4.3 Special Requests.
4.4 Client Provided Network and Software
4.5 Correction of Processing Errors.
4.6 Client Review of Reports.
5. SOFTWARE.
5.1 Additional Licensed Programs
5.2 Software Warranty
5.3 Third Party Software
6. PLANNING AND COMMUNICATION.
6.1 Management Interface.
6.2 User Interface.
6.3 Annual Technology Review.
7. EDUCATION.
8. MERGERS AND ACQUISITIONS.
9. ENHANCEMENTS, REPLACEMENT SYSTEMS, NEW SUBSYSTEMS, NEW SYSTEMS,
AND MODIFICATIONS TO ALLTEL FINANCIAL BATCH AND ON-LINE SYSTEMS
9.1 Announcement 8
9.2 Installation of Enhancements and Replacement Systems 8
9.3 Installation of New Subsystems and New Systems
9.4 Modifications Requested by Client
9.5 Client Knowledge of System Status.
9.6 User Manuals
10. REGULATORY COMPLIANCE.
11. CONFIDENTIALITY.
11.1 Confidentiality of Client Data.
11.2 ALLTEL Financial Data.
11.3 Inspection of Records.
11.4 Confidential Agreement.
12. RETURN OF DATA. 12.1 Program Ownership.
12.2 Master and Transaction File Ownership.
12.3 CMSI Credit Revue System
13. DISASTER RECOVERY AND FILE BACKUP.
13.1 Disaster Recovery.
13.2 File Backup.
14. MISCELLANEOUS SERVICES.
14.1 ALLTEL Financial Hourly Rates. Error! Bookmark not defined.
14.2 Repetitive Services.
15. PAYMENT AND BILLING.
17. TERMINATION.
17.1 Right to Terminate.
17.2 Method of Termination.
17.3 Data, Systems and Programs.
18. NO INTERFERENCE WITH CONTRACTUAL RELATIONSHIP.
19. ASSIGNMENT OR DELEGATION OF DUTIES.
20. Client and ALLTEL Financial Employees.
21. NOTICES.
22. PARAGRAPH TITLES.
23. COUNTERPARTS.
24. INCREASE FOR TAXES.
25. STANDARD REPORTS AND SCHEDULES.
26. FINANCIAL STATEMENTS.
27. GOVERNING LAW.
28. INSURANCE.
29. ENTIRE AGREEMENT, WARRANTY DISCLAIMERS.
EXHIBITS
A. Implementation Schedule and Plan
B. Reports
C. Charges
D. Input/Output Schedule
E. ALLTEL Financial Holiday Schedule
F. ALLTEL Financial Insurance Coverage
G. Guidelines for Disaster Recovery Responsibilities
H. Software License Agreement
I. Training Services
Certain confidential information has been omitted where indicated and filed
separately with the
Securities and Exchange Commission.
ALLTEL FINANCIAL INFORMATION SERVICES, INC.
REMOTE OUTSOURCING AGREEMENT
This is an Agreement between ALLTEL FINANCIAL INFORMATION SERVICES, INC., an
Arkansas corporation, whose permanent mailing address is 4001 Rodney Parham
Road, Little
Rock, Arkansas 72212, hereinafter referred to as "ALLTEL Financial" and
First Merchants
Acceptance Corporation, whose permanent mailing address is 570 Lake Cook Road,
Suite 126,
Deerfield, Illinois 60015, hereinafter referred to as "Client". In
consideration of the payments to
be made and services to be performed hereunder, the parties agree as follows:
1. Scope of Services, Description of Exhibits.[COMMENT1]
1.1 Services[COMMENT2]. ALLTEL Financial will provide the installation and
conversion
services described in Exhibit A and, upon conversion, ALLTEL Financial will
provide the data
processing services described in this Agreement and the exhibits hereto to
Client and Client's
wholly-owned subsidiaries who are processed in the same processing environment
as Client. If
requested by Client, ALLTEL Financial shall provide a proposal (including the
additional cost
therefor) for providing the above installation and conversion services to
Client's wholly-owned
subsidiaries, who are not processed in the same processing environment as
Client.
1.2 Exhibits[COMMENT3]. ALLTEL Financial will install the application
systems
itemized in Exhibit A, with such installations completed and ready for
processing of Client's data
in accordance with the dates in Exhibit A. ALLTEL Financial will receive data
from Client for
processing and will process such data and produce the reports selected by
Client pursuant to
Exhibit B in accordance with the schedules set forth in Exhibit D. Client
will pay ALLTEL
Financial for its services herein in accordance with this Agreement and
Exhibit C hereto.
2. Term.[COMMENT4]
The effective date of this Agreement shall occur on June 1, 1996 (the
Effective Date). In the
event that ALLTEL Financial and Credit Management Solutions, Inc. (ACMSI) are
unable to
enter into a mutually agreeable Non-Disclosure and Operating Agreement on or
prior to June 30,
1996, ALLTEL Financial shall notify Client, and ALLTEL Financial and Client
shall promptly
meet thereafter to discuss reasonably acceptable alternative arrangements and
work arounds.
This Agreement will terminate on May 31, 2002 (the "Expiration Date"). Not
less than nine
months prior to the Expiration Date, ALLTEL Financial will submit to Client a
renewal
agreement for the continuation of processing services hereunder and Client
will promptly review
such agreement, and commence negotiations with ALLTEL Financial, if necessary,
and accept or
reject the agreement within six months prior to the Expiration Date.
3. Responsibilities of the Parties.[COMMENT5]
The parties have certain responsibilities under this Agreement as follows:
3.1 Input Forms and Output Forms.[COMMENT6] Client will provide all input
forms,
output forms, balance control forms, other forms and paper stock necessary for
its data
processing. Plain white paper stock and envelopes identified in Exhibit C for
statement rendering
will be provided by ALLTEL Financial.
3.2 Delivery.[COMMENT7] Client is responsible for entry of input data by
means of
telecommunication or, where applicable, by delivery of documents or tape by
mail through
contract courier or otherwise to ALLTEL Financial=s data center currently
located at Little
Rock, Arkansas (the "ALLTEL Financial Data Center"). Paper, fiche, or tape
input will be
delivered to an ALLTEL Financial-designated location at the ALLTEL Financial
Data Center.
ALLTEL Financial will prepare output for receipt by Client and, when it is
"download" output,
ALLTEL Financial will transmit such output to Client. Where designated as
"paper", ALLTEL
Financial will deliver output to the U.S. mail or to contract courier, or
remote print as applicable
as requested by Client. ALLTEL Financial will separate output, by
application, for delivery to
Client at the times and in the manner specified in Exhibit D. Subject to
Client's responsibility to
maintain copies of original input data as defined in Section 3.5, ALLTEL
Financial
acknowledges its responsibility for safekeeping Client's documents or data
while in the ALLTEL
Financial Data Center.
3.3 Equipment and Communication Costs.[COMMENT8] In connection with the
use of
on-line services, ALLTEL Financial will provide the report printing equipment
listed in Exhibit
C of the Agreement. Client shall be responsible for any other equipment and
communication
costs, including but not limited to, telephone lines, line set, LANs, LAN
components that may be
required from time-to-time but not included in Exhibit C, as well as the
installation and
continuing costs thereof, as required by such on-line operations. ALLTEL
Financial reserves the
right to approve installation dates and selection of such equipment to assure
that this equipment
is compatible with ALLTEL Financial's equipment and programs and that the
installation dates
for such equipment are compatible with the required installation schedule.
3.4 Client's Input Data.[COMMENT9] All tapes, MICR encoded documents,
and other
input data furnished by Client hereunder shall be in good condition,
customarily acceptable for
machine-reading in a form and format specified by ALLTEL Financial. All
on-line data
transmissions must be in proper formats and input forms and data entry screens
used must be in
accordance with ALLTEL Financial's specifications, as provided to Client in
writing. Client
will correct all input data not submitted in the form and manner set forth
herein.
3.5 Maintaining Copies of Input. [COMMENT10] Client will microfilm or
otherwise
maintain copies of all input data for processing hereunder, whether submitted
to ALLTEL
Financial directly or through third parties, to permit reconstruction of such
input data. Client
assumes all risks of loss and expenses of reconstruction of such input data
for processing.
3.6 Compatibility of Non-ALLTEL Financial Software.[COMMENT11] If Client
wishes
to utilize non-ALLTEL Financial systems and have such systems communicate with
ALLTEL
Financial software, ALLTEL Financial shall determine the feasibility thereof.
If feasible,
ALLTEL Financial will submit a cost proposal to Client for development and
repetitive
communication with the non-ALLTEL Financial software. Client will provide all
data input to
ALLTEL Financial in ALLTEL Financial=s standard format as provided to the
Client in writing.
Client will receive all downloaded data from ALLTEL Financial in ALLTEL
Financial's
standard format.
3.7 Financial Management Equivalent Software[COMMENT12]. Within six
(6) months
after the completion of Client=s conversion, as described in Exhibit A, Client
may notify
ALLTEL Financial that Client desires to replace the Financial Management
System and
Accounts Payable System with a third party equivalent system. Promptly after
receiving such
notice, the parties shall meet to discuss ALLTEL Financial=s services and new
charges for
providing implementation and processing of the third party equivalent system
(if any), as well as
any appropriate net changes to the Conversion and Base Processing Fee (with
the monthly
Conversion and Base Processing Fee being decreased by ["Confidential Portion
Omitted"] and
increased by the cost of any new implementation and processing services).
3.8 Alternative Third-Party Software[COMMENT13]. At any time after the
completion of
Client's conversion, as described in Exhibit A, Client may notify ALLTEL
Financial that Client
desires to replace the software systems and subsystems described in Section 2
of Exhibit A with
a third party equivalent system. Promptly after receiving such notice, the
parties shall meet to
discuss ALLTEL Financial's services and new charges for providing
implementation and
processing of the third party equivalent systems (if any). Under no
circumstances, however, will
ALLTEL Financial be required to reduce its Conversion and Base Processing Fee
as a result of
replacing any of the software systems and subsystems described in Section 2 of
Exhibit A.
3.9 Audit.[COMMENT14]
(a) ALLTEL Financial will provide an annual audit of its operations at
the ALLTEL
Financial Data Center by an independent accounting firm. A copy of the
related audit report will
be furnished to Client upon Client's request.
(b) In addition, ALLTEL Financial will cooperate fully with Client or
its internal or external
auditors for the purpose of audit and regulatory compliance. Promptly
following any such audit
of Client, whether conducted by either internal or external auditors, Client
will instruct its
auditors to conduct an exit conference with ALLTEL Financial and to provide
ALLTEL
Financial as soon thereafter as is reasonably possible a copy of each report
prepared as a result of
such audit examination whether in draft or final form. In addition, Client
will provide and
instruct its external auditors to provide ALLTEL Financial with a copy of that
portion of each
written report containing comments concerning ALLTEL Financial or the services
performed by
ALLTEL Financial pursuant to this Agreement.
3.10 Days of Operation.[COMMENT15] ALLTEL Financial will "batch process"
and update
Client's data for a maximum of six (6) days per week, such days being Monday
through Saturday
in accordance with Exhibit D. On-line service hours are defined separately in
Exhibit D.
ALLTEL Financial will observe the holiday schedule shown in Exhibit E.
Upon 90 days prior written notice to ALLTEL Financial, Client may request
ALLTEL Financial
to reduce the number of batch processing days to only five days per week, such
days being
Monday through Friday. Effective beginning on the reduction in days, ALLTEL
Financial shall
reduce the Conversion and Base Processing Fees by ["Confidential Portion
Omitted"] per
month.
4. Time of Performance.[COMMENT16]
The parties agree that timely and accurate submission of input and output is
essential to
satisfactory performance under this Agreement.
4.1 Submission of Input.[COMMENT17] Client agrees that its failure to
submit input data in
the form prescribed in Section 3 or in accordance with the schedules set forth
in Exhibit D shall
enlarge ALLTEL Financial=s time of performance hereunder if and to the extent
reasonably
necessary.
4.2 Acts of God and Equipment Malfunction.[COMMENT18] If an act of God,
other
disaster, malfunction of equipment or other event beyond the reasonable
control of ALLTEL
Financial prevents timely data processing hereunder, Client agrees that ALLTEL
Financial's
time of performance shall be enlarged if and to the extent reasonably
necessary.
4.3 Special Requests.[COMMENT19] Special requests by Client or any
governmental
agency authorized to regulate or supervise Client which impact ALLTEL
Financial's normal
processing schedule shall result in an enlargement of ALLTEL Financial's time
of performance
hereunder if and to the extent reasonably necessary.
4.4 Client Provided Network and Software[COMMENT20]. In the event of any
malfunction or other problems associated with the Client provided data
communications, Client
internal operations or performance of any Client software and/or Client
provided third party
software, including without limitation the CMSI Credit Revue system, or any
enhancement,
development, or maintenance of any such Client software and/or Client provided
third party
software, Client agrees that ALLTEL Financial=s time of performance shall be
enlarged if and to
the extent reasonably necessary.
4.5 Correction of Processing Errors.[COMMENT21] In the event of an error in
processing
Client's data, ALLTEL Financial will correct such error within a reasonable
time, including the
rebuilding of any data files damaged or destroyed by error. Error correction
or rebuilding of data
files shall be without charge to Client unless caused by the nature of the
data submitted by
Client. Client will pay for the cost of correcting errors and rebuilding data
files to the extent
caused by the nature of the data submitted by Client. If any such error is
generated by faulty
programs, ALLTEL Financial will provide Client with evidence, as Client may
reasonably
require, which will verify the complete and proper execution of corrections to
applicable
program routines. Under no circumstances shall ALLTEL Financial be liable for
any of Client's
loss of revenue associated with any such processing error.
4.6 Client Review of Reports.[COMMENT22] Client will carefully review and
inspect all
reports prepared by ALLTEL Financial and balance promptly to the control
totals mutually
established by Client and ALLTEL Financial, and within a reasonable time after
any error or out-of-balance condition should be detectable, Client will notify
ALLTEL Financial of any erroneous
processing. If Client fails to so notify ALLTEL Financial, it shall be deemed
to have waived its
rights in respect of such error and to have assumed all risks in respect
thereof, including any
increase in the cost of correction, to the extent that ALLTEL Financial shall
establish that the
same could have been avoided by earlier detection of such error.
5. Software.[COMMENT23]
Effective on the Expiration Date (or the earlier Termination Date if this
Agreement is terminated
by Client pursuant to the provisions of Section 17.1), ALLTEL Financial will
grant and convey
to Client and Client will accept a license to use ALLTEL Financial's
proprietary application
systems ("Software") listed in Exhibit A(2), under the terms and conditions
set forth in Exhibit
H. However, such software license shall be effective for only that Software
installed for Client's
benefit as of the Expiration Date or Termination Date. The software license
for the above
referenced application systems will be furnished at no additional cost to
Client provided,
however, that prior to the Expiration Date (or earlier Termination Date),
Client shall be required
to enter into ALLTEL Financial's software maintenance agreement which shall
include Client's
obligation to pay ALLTEL Financial its then current software maintenance fees.
5.1 Additional Licensed Programs[COMMENT24]. The license contemplated by
this
Section 5 shall also apply to all ALLTEL Financial-developed program
modifications,
enhancements, new systems or major subsystems installed for Client's benefit
pursuant to this
Agreement as of the Expiration Date or Termination Date. ALLTEL Financial
will furnish
Client, upon request, a current list of all Software systems and subsystems
developed and made
available by ALLTEL Financial. ALLTEL Financial will give Client ninety (90)
days' notice
prior to eliminating updates for a particular system version of any ALLTEL
Financial-developed
program.
5.2 Software Warranty[COMMENT25]. Each of the warranties set forth in
Exhibit H, as
well as the patent and trademark indemnity provisions of Exhibit H, shall
apply to the Software,
and all enhancements, modifications or changes thereto, furnished or used
pursuant to this
Agreement.
5.3 Third Party Software[COMMENT26]. ALLTEL Financial will use all
computer
programs acquired by Client from third parties or developed by Client without
the assistance of
ALLTEL Financial exclusively to process Client's data. Client shall be
required to obtain all
necessary consents in order to enable ALLTEL Financial to use such third party
software and to
perform ALLTEL Financial=s obligation under this Agreement. Additional use of
such
programs by ALLTEL Financial shall require the written approval of Client.
ALLTEL Financial
reserves the right to review and/or test such programs, in advance of
processing, to assure
compatibility with ALLTEL Financial equipment and consistency with ALLTEL
Financial's
processing techniques. Client may purchase maintenance contracts for such
programs in its
discretion. Client will indemnify ALLTEL Financial and hold ALLTEL Financial
harmless from
any loss, claim, damage or expense, including reasonable attorneys' fees,
resulting from any
action brought or claim made by any third party claiming superior title. right
to protection of
proprietary information, or breach of contract in respect of any such
programs.
6. Planning and Communication.[COMMENT27]
ALLTEL Financial and Client agree that effective planning and communication
are necessary to
provide direction to data processing, and that they will work to promote a
free and open
exchange of information between ALLTEL Financial personnel, Client executive
management
and Client user departments.
6.1 Management Interface.[COMMENT28] ALLTEL Financial and Client will
establish a
joint data processing steering committee to facilitate long-term planning and
to provide for a
periodic review of Client's data processing priorities, objectives, and
accomplishments. Such
committee will be comprised of designated members of Client's executive
management and shall
meet monthly. ALLTEL Financial's Account Executive will be a non-voting
member of such
committee. The steering committee will develop and adopt a long-term
strategic plan and a
rolling twelve-month business plan for data processing. ALLTEL Financial will
assist the
committee in evaluating its plans and the implementation thereof through an
annual review
presented to the committee and to the board of directors of Client, and
through more frequent call
programs and surveys. An initial organization meeting of the steering
committee and the user
committee described in Section 6.2 will be held within thirty (30) days of the
Effective Date of
this contract.
6.2 User Interface.[COMMENT29] Client will designate one senior person
in each of its
user divisions upon whom ALLTEL Financial may rely for communications related
to Client's
data processing. Such application liaisons shall form a User Committee and
meet with ALLTEL
Financial=s Account Executive on a monthly basis to review outstanding
application issues.
Such committee will be chaired by one of the senior managers on the committee
who shall be
assisted by the ALLTEL Financial Account Executive in preparing each monthly
agenda and
producing minutes of each meeting. The User Committee will provide additional
assurance that
ALLTEL Financial and Client will follow appropriate project management
principles and will
adhere to applicable DPR procedures. ALLTEL Financial will assist the User
Committee and
the departments individually that are represented on the committee in
evaluating its plans and the
implementation thereof by an annual review presented to the committee and by
more frequent
call programs and surveys directly with the user department.
6.3 Annual Technology Review.[COMMENT30] On an annual basis, ALLTEL
Financial will review the technology components deployed to meet Client's
business
requirements. Such components, including hardware, software and personnel,
will be assessed in
light of Client's current and future objectives and requirements. ALLTEL
Financial will prepare
annually a written assessment and present to Client=s management, along with
recommendations
and proposals for any new technology components or adjustments to existing
components that
may benefit Client's technology objectives.
During the fourth year of this Agreement, ALLTEL Financial will perform, in
addition to the
Annual Technology Review, a review of delivery alternatives to include an
on-site outsourcing
solution. At Client's direction, ALLTEL Financial will prepare a proposal for
any such alternate
delivery solution. The proposal will address pricing, implementation,
staffing and other related
components.
7. Education.[COMMENT31]
ALLTEL Financial will make available to Client and its personnel, its standard
application
software training courses, as set out in Exhibit C, which are generally held
in Little Rock,
Arkansas, in accordance with ALLTEL Financial's education and training
department schedule,
a current copy of which will be provided to Client upon request. Client
personnel may attend
such courses which are generally offered by ALLTEL Financial to its customers,
upon payment
of ALLTEL Financial's then current standard published course fee. Client
acknowledges that
enrollment of Client personnel in any courses offered by ALLTEL Financial
shall be subject to
normal space availability requirements and compliance with ALLTEL Financial's
standard
registration and enrollment deadlines and procedures. Client also will
complete any and all class
prerequisites prior to attending class.
8. Mergers and Acquisitions.[COMMENT32]
Upon written request by Client, ALLTEL Financial will process additional data
resulting from
any merger or acquisition involving either Client or any of the Client's
affiliates or any contract
by Client to process a third party correspondent=s data; subject, however, to
agreement on the
processing and conversion charges applicable thereto. Client will notify
ALLTEL Financial of
any such proposed merger. acquisition or contract by Client as soon as
reasonably practicable. In
the event that Client merges, acquires or contracts with a third party who is
also an outsourcing
customer of ALLTEL Financial, the parties agree to meet in good faith to
discuss an appropriate
amendment to this Agreement and the third party's outsourcing agreement in
order to eliminate
duplication, bring increased economies of scale, and lengthen, if necessary,
the then unexpired
term of this Agreement to be at least equal to the term of the third party=s
outsourcing
agreement.
9. Enhancements, Replacement Systems, New Subsystems, New Systems, and
Modifications to ALLTEL Financial Batch and on-line Systems[COMMENT33]
9.1 Announcement[COMMENT34] ALLTEL Financial will furnish Client upon
request, a
current list of all enhancements, replacement systems, new subsystems, and new
systems
developed by ALLTEL Financial and made generally available to customers of the
ALLTEL
Financial Data Center. An enhancement refers to a scheduled upgrade of a
current system. A
replacement system refers to a system developed to replace an older version of
that same system.
New subsystems and new systems refer to subsystems and systems newly developed
and
released to the ALLTEL Financial network of data centers.
9.2 Installation of Enhancements and Replacement Systems[COMMENT35] With
respect
to systems and subsystems listed in Exhibit A, ALLTEL Financial will install
and Client will
accept all such ALLTEL Financial-developed enhancements and replacement
systems. If Client
declines to accept new system or subsystem, Client may be required to pay the
cost of processing
for the stand-alone system, said cost to be determined at the time.
Subsequent to the installation
of an ALLTEL Financial-developed replacement system, ALLTEL Financial will no
longer
provide enhancements to the replaced version of that ALLTEL Financial system.
Installation of
enhancements and replacement systems will be provided by ALLTEL Financial
without
installation charge except for Client-specific programming requirements and
unless program
modifications previously installed by ALLTEL Financial, at Client's request,
have created a
condition which would result in excess installation time over the normal
installation time, in
which event the related excess hours of programmer time, client services time,
computer time
and computer operator time will be charged Client using ALLTEL Financial's
Hourly Rates as
defined herein.
9.3 Installation of New Subsystems and New Systems[COMMENT36] Installation
of new
subsystems or new systems will be provided by ALLTEL Financial at Client's
option for a fee.
ALLTEL Financial will present the features of such new subsystems or new
systems to Client
and inform Client of any fees related to such installation. Client will pay
the costs of education
of Client's employees, new user documentation, file conversions, and a
reasonable increase in
repetitive processing charges (if any) associated with new subsystems or
systems. ALLTEL
Financial will present the features, installation and education costs, and
additional processing
charges (if any) to Client at least 90 days prior to the scheduled
implementation of the new
subsystem or system. Any programmer, client services, computer operator, or
computer time
required by ALLTEL Financial for modification to such new subsystem or system
requested by
Client will be charged to Client using ALLTEL Financial=s Hourly Rates as
defined herein.
9.4 Modifications Requested by Client[COMMENT37] During the term of
this Agreement,
Client may request modifications to the programs installed for Client. If
ALLTEL Financial
agrees to make such modifications, computer, computer operator, client
services, and
programmer time used by ALLTEL Financial to implement such Client-authorized
modifications
will be charged to Client using ALLTEL Financial=s Hourly Rates as defined
herein. Requested
modifications may increase the cost to Client of subsequently installing
and/or processing
ALLTEL Financial-developed enhancements, replacements systems, new subsystems,
or new
system releases. With respect to modifications of ALLTEL Financial's
application bank control
records (BCRs), Client shall have the ability to make on-line certain BCR
modifications as
agreed upon by Client and ALLTEL Financial. ALLTEL Financial shall make other
Client
requested BCR modifications, without charge, except for modifications which
require
programming time. Client will pay for chargeable BCR modifications, at ALLTEL
Financial's
Hourly Rates.
9.5 Client Knowledge of System Status.[COMMENT38] Client acknowledges its
responsibility to remain informed of the direction and status of the software,
including attendance
at necessary education classes and workshops. ALLTEL Financial will furnish
Client with one
copy of the Product Reference Manual. ALLTEL Financial will issue updates to
the manual
throughout the year.
9.6 User Manuals[COMMENT39] Prior to the Transition Date, ALLTEL Financial
will
provide to Client a copy of each user manual. Client is responsible for the
initial personalization
and the subsequent maintenance, reproduction and distribution of all user
manuals.
10. Regulatory Compliance.[COMMENT40]
To comply with the requests of applicable regulatory authorities, ALLTEL
Financial agrees that
Client's processing will have priority over processing for ALLTEL Financial's
non-financial
customers, if any. ALLTEL Financial will provide, at the prescribed times,
all required letters of
assurance to the appropriate regulatory authorities. During the term of this
Agreement, ALLTEL
Financial agrees that ALLTEL Financial=s programs will comply with the
mandatory federal
data processing output requirements specified by the federal regulatory
authorities applicable to
Client. Client will make ALLTEL Financial aware of any applicable local or
state regulatory
requirements which have requirements different than those of federal
regulatory authorities. Any
changes required by such state or local requirements which ALLTEL Financial
agrees to make
shall be paid for by Client, and to the extent possible, ALLTEL Financial
shall endeavor to
obtain consents to share the costs of such charges required by such state and
local requirements
among the ALLTEL Financial clients affected.
11. Confidentiality.[COMMENT41]
11.1 Confidentiality of Client Data.[COMMENT42] All information concerning
Client, its
business or customers submitted to ALLTEL Financial pursuant to this Agreement
shall be held
in confidence by ALLTEL Financial and shall not be disclosed. No person or
entity shall be
permitted to have access to Client's data without the written authorization of
Client. All of
Client's data shall be available for examination by Client, at any time during
regular business
hours, without notice. If ALLTEL Financial receives any legal process
requiring it to produce
Client's data or that of any of its customers, ALLTEL Financial shall notify
Client promptly, and
deliver copies of such orders to Client, immediately and prior to compliance
with such process.
11.2 ALLTEL Financial Data.[COMMENT43] All information concerning ALLTEL
Financial, its software, related documentation or its business submitted by
ALLTEL Financial to
Client pursuant to this Agreement shall be held in confidence by Client and
Client will safeguard
such information with the same degree of care that it exercises with respect
to its own proprietary
and confidential information. Client agrees that no such information will be
disclosed or made
available to any third party for any reason except for employees of Client on
a "need-to-know"
basis, for auditing purposes by independent certified accountants, and for
complying with
applicable governmental laws, regulations or court orders. Client covenants
and agrees that,
except as ALLTEL Financial may specifically approve in writing, in advance, it
will not utilize
any such information, except as contemplated by this Agreement.
11.3 Inspection of Records.[COMMENT44] No person shall be permitted to have
access to
Client's data without the written authorization of a properly designated
officer of Client which
authorization shall specify the data to which such persons may have access.
ALLTEL Financial
agrees that all of Client's data shall be available for examination, at any
time during regular
business hours, without notice. If ALLTEL Financial receives any legal
process requiring it to
produce Client's data or that of any of its customers, ALLTEL Financial shall
notify Client
promptly and deliver copies of such orders to Client, immediately and prior to
compliance with
such process. Except as provided in Section 11.2, no person shall be
permitted access to any
information concerning ALLTEL Financial, its software, related documentation
or its business
without the prior written authorization of a properly designated officer of
ALLTEL Financial,
which authorization shall specify the information to which such persons may
have access. If
Client receives any legal process requiring it to produce any such ALLTEL
Financial
information, Client shall notify ALLTEL Financial promptly and deliver copies
of such orders to
ALLTEL Financial, promptly and prior to compliance with such process, at
ALLTEL Financial
Information Services, Inc., 4001 Rodney Parham Road, Little Rock, Arkansas
72212, Attention:
General Counsel.
11.4 Confidential Agreement.[COMMENT45] This Agreement is a confidential
document.
In no event may this Agreement be reproduced or copied or shown to any third
parties by either
Client or ALLTEL Financial without the prior written consent of the other
party, except as may
be necessary by reason of legal, audit or regulatory requirements beyond the
reasonable control
of ALLTEL Financial or Client, as the case may be.
12. Return of Data.[COMMENT46]
At Client's request and upon payment by Client to ALLTEL Financial at ALLTEL
Financial's
Hourly Rates and provided that Client is not in default hereunder, ALLTEL
Financial will
provide to Client all data and files, in machine readable form or otherwise,
belonging to Client in
ALLTEL Financial's possession at any time
12.1 Program Ownership.[COMMENT47] ALLTEL Financial's proprietary programs
and
related documentation will remain its property both during and subsequent to
the term of this
Agreement. Any programs and related documentation owned by Client that are
used by
ALLTEL Financial to process Client's data will remain the property of Client
and ALLTEL
Financial may not use such programs for any purpose without Client's prior
written permission.
12.2 Master and Transaction File Ownership.[COMMENT48] Client's master and
transaction files are the property of Client and will be made available to
Client by ALLTEL
Financial, promptly upon the request of Client. Such data will be made
available in its then
present format, copied onto magnetic tapes supplied by Client. Charges for
such services will be
at ALLTEL Financial's Hourly Rates then in effect. Client will pay all
charges for the delivery
of such data to the Client.
12.3 CMSI Credit Revue System[COMMENT49]. Client will license Credit Revue,
a
proprietary software product of Credit Management Solutions, Inc. (ACMSI), in
order to
automate certain credit underwriting processes. Client shall promptly notify
ALLTEL Financial
of any proposed changes to Credit Revue, as well as provide any enhancements
or updates of
Credit Revue to ALLTEL Financial. Client represents and warrants that there
are no defaults or
assertions of default with respect to its contractual obligations with CMSI.
In the event of any
future defaults or assertions of default by either Client or CMSI, Client
agrees to promptly notify
ALLTEL Financial. Client also represents and warrants that Client has the
right to provide
Credit Revue to ALLTEL Financial under this Agreement for Client=s use and
that ALLTEL
Financial is able and at all times throughout this Agreement will be able to
perform all of its
contractual obligations under this Agreement without breaching any of Client=s
contractual
obligations with CMSI. Credit Revue will be installed on equipment located at
ALLTEL
Financial=s facility. ALLTEL Financial agrees and acknowledges that it is not
gaining any
rights by license or otherwise to Credit Revue by virtue of this Agreement
(i.e., the agreement
between ALLTEL Financial and Client). Further, ALLTEL Financial agrees and
acknowledges
that it shall not reverse engineer, disassemble or decompile any CMSI software
licensed to
Client, or otherwise permit the forgoing to occur.
13. Disaster Recovery and File Backup.[COMMENT50]
13.1 Disaster Recovery.[COMMENT51] ALLTEL Financial shall provide disaster
recovery
services for its batch and on-line processing obligations to Client and
client=s CMSI HP System
at a dedicated facility which is equipped to handle the ALLTEL Financial Data
Center
processing in the event disaster recovery is needed. Client is responsible for
all communications
related components and expenses relative to disaster recovery services.
Throughout the term of
this Agreement, ALLTEL Financial will maintain in effect contracts and/or
arrangements for
disaster recovery which are substantially equivalent to those which are
currently in effect.
Client to deal with circumstances which are expected to cause a substantial
portion of the
capabilities at the ALLTEL Financial Data Center to be unavailable for a
period exceeding 72
consecutive hours.
ALLTEL Financial will test its disaster recovery capabilities at least once
per calendar year. The
Client shall be required to participate in the disaster recovery test when
deemed appropriate by
ALLTEL Financial.
Guidelines to assist the parties in understanding their respective general
responsibilities and areas
of cooperation are set forth in Exhibit G attached hereto.
13.2 File Backup.[COMMENT52] ALLTEL Financial will provide and maintain
adequate
backup files of Client's data once received by ALLTEL Financial and all ALLTEL
Financial
Data Center programs utilized to process Client's data.
14. Miscellaneous Services. Client may authorize and ALLTEL Financial may
agree to
perform certain services not included in this Agreement. Authorized services
such as the use of
ALLTEL Financial programmers or non-repetitive computer and operator time or
keypunching
or clerical function will be charged to Client by multiplying the actual hours
used by the
appropriate ALLTEL Financial hourly rates (the A Hourly Rates). ALLTEL
Financial=s Hourly
Rates are shown below and may be changed by ALLTEL Financial by providing 30
days prior
written notice to Client. Extended Hour Premium Fees shall be applicable when
ALLTEL
Financial personnel perform services related to Client=s requirements at times
other then the
ordinary working hours for the ALLTEL Financial personnel involved in
providing the
service.[COMMENT53]
["Confidential portion omitted"]
The minimum computer time charge is ["Confidential Portion Omitted"] per
processing run
and all personnel services are charged to the nearest one-half hour with a
one-half hour
minimum.
Notwithstanding the foregoing, ALLTEL Financial agrees that there shall be no
charge to Client
for time spent by ALLTEL Financial=s management and/or customer service
personnel in the
performance of the recurring operational responsibilities of ALLTEL Financial
under this
Agreement. If ALLTEL Financial determines that its assistance is required at
Client's location to
resolve problems not resulting from ALLTEL Financial's failure to perform,
Client will pay
ALLTEL Financial in accordance with this Agreement, as well as for all travel,
lodging, and out-of-pocket expenses incurred by ALLTEL Financial.
14.2 Repetitive Services.[COMMENT54] Client also may request ALLTEL
Financial to
prepare price quotations for services of a repetitive nature. If ALLTEL
Financial agrees to
perform such services, ALLTEL Financial will provide Client with a written fee
quotation.
Upon written authorization from Client, ALLTEL Financial promptly will
initiate such services
in accordance with the mutually agreed upon schedule.
14.3 Price Adjustment. The parties acknowledge that ALLTEL Financial's
costs of providing services pursuant to this Agreement are likely to
increase, particularly in the areas of data processing salaries and
operating systems maintenance. The fees and charges reflected in this
Agreement including, without limitation, the Conversions and Base
Processing Fee, will be increased, but not decreased, to compensate
ALLTEL Financial for such inflation based upon changes in the
[CONFIDENTIAL PORTION OMITTED] as published by the U.S. Department of
Labor, Bureau of Labor Statistics. Effictive June 1, 1997 (the thirteenth
contract month), such fees and charges shall be increased by [CONFIDENTIAL
PORTION OMITTED] over the period ended April 30, 1997 (the tenth contract
month). Annually thereafter, such fees and charges shall be further
increased effectibve as of June 1) [CONFIDENTIAL PORTION OMITTED] for the
corresponding twelve-month period ended April 30th of each year.
Notwithstanding the foregoing, the adjustment during any 12 month period
shall not be less than [Confidential Portion Omitted] nor more than
[Confidential Portion Omitted].
15. Payment and Billing.[COMMENT56]
All amounts payable pursuant to this Agreement shall be payable in U.S.
currency. ALLTEL
Financial shall bill the Conversion and Base Processing Fee as set in Section
1.1 of Exhibit C, on
the first day of each month for services to be provided during that month.
ALLTEL Financial
will bill all additional incremental processing fees, reimbursable expenses
and other charges on
the first day of each month, for services rendered during the preceding month.
All such billings
shall be due upon receipt. If Client fails to pay any invoice within thirty
(30) days from the mail
date of invoice, ALLTEL Financial shall notify Client that such invoice is
past due and ALLTEL
Financial shall charge a late penalty equal to the lower of 1.5% per month on
the outstanding
balance owed by Client or the maximum amount allowable under law. If Client is
past due in any
payment for more than forty-five (45) days from mail date of invoice, ALLTEL
Financial may
terminate this Agreement by giving ten (10) days written notice to Client.
16. Limitation of Liability. If ALLTEL Financial shall breach any covenant,
agreement or undertaking required of it by this Agreement, the liability of
ALLTEL Financial to Client shall be limited to Clients's direct damages,
actually incurred, which under no circumstances shall exceed the amount of
fees paid by Client to ALLTEL Financial under this Agreement from the date
herof until the date of the breach. Client acknowledges that ALLTEL Financial
is not and shall not be liable for any special, consequential or punitive
damage or loss of revenuesuffered by Client. ALLTEL Financial shall have no
liability, expressed or implied, whether arising under contract, tort or
otherwise which results directly or indirectly from data communication
network, internal operations and performance of any Client software and or
Client provided third party software, including without limitation, the
CMSI CreditRevue system, or any enhancement, development or maintenance of
any such Client software and/or Client provided third party software.
17. Termination.[COMMENT57]
This Agreement may be terminated prior to the Expiration Date, as follows:
17.1 Right to Terminate.[COMMENT58] In addition to any other rights which
either party
may have in law or equity, either ALLTEL Financial or Client may terminate
this Agreement if
the defaulting party fails to cure any material default hereunder within
ninety (90) days of written
notice from the other party, specifying the nature and extent of any such
default.
17.2 Method of Termination.[COMMENT59] Exercise of the right to terminate
under this
Section must be accomplished by specifying in such written notice to the
defaulting party, the
nature and extent of such material default and fixing a date, on the last day
of a month, not less
than 180 days following the date of receipt of such notice, for cessation of
services hereunder
(the "Termination Date").
17.3 Data, Systems and Programs.[COMMENT60] If this Agreement expires, or
if Client
terminates by virtue of ALLTEL Financial's material default, all licensed
systems shall remain
subject to Exhibit H. In addition, upon Client's request, ALLTEL Financial
agrees to provide to
Client copies of Client's data files, records and programs on magnetic media.
18. No Interference with Contractual Relationship.[COMMENT61]
Client warrants that, as of the date hereof, it is not subject to any
contractual obligation that
would prevent Client from entering into this Agreement, and that ALLTEL
Financial=s offer to
provide such service in no way caused or induced Client to breach any
contractual obligation.
19. Assignment or Delegation of Duties.[COMMENT62]
Neither party hereto shall assign, subcontract, or otherwise convey or
delegate its rights or duties
hereunder to any other party without the prior written consent of the other
party to this
Agreement.
20. Client and ALLTEL Financial Employees.[COMMENT63]
During the term of this Agreement and for a period of one year thereafter,
both Client and
ALLTEL Financial agree not to solicit nor offer employment to any employee of
the other
without the prior written consent of the other.
21. Notices.[COMMENT64]
All notices, requests and demands, other than routine operational
communications under this
Agreement, shall be in writing and shall be deemed to have been duly given
when delivered in
person, by contract courier, by facsimile or three business days following
deposit in the United
States mail, registered or certified postage prepaid, and addressed to the
other party at the address
first herein shown above. Notice of changes of address, if any, shall be
given in like manner.
22. Paragraph Titles.[COMMENT65] Paragraph titles as to the subject
matter of particular
paragraphs herein are for convenience only and are in no way to be construed
as part of this
Agreement or as a limitation of the scope of the particular paragraphs to
which they refer.
23. Counterparts.[COMMENT66]
This Agreement may be executed in several counterparts, each of which shall be
deemed to be an
original, but all of which shall constitute one and the same instrument.
24. Increase for Taxes.[COMMENT67]
Client will pay directly or to reimburse ALLTEL Financial for all taxes
however designated,
levied or based on the charges hereunder or on this Agreement, including state
and local sales,
use, privilege or excise taxes based on gross revenues or taxes on services
rendered; excluding,
however, any taxes levied on the personal property or net income of ALLTEL
Financial.
25. Standard Reports and Schedules.[COMMENT68]
All processing for Client and each of its subsidiaries or affiliates and
branches or facilities will be
identical in terms of applications processed (Exhibit A), reports produced
(Exhibit B), and input-output schedules (Exhibit D).
26. Financial Statements.[COMMENT69]
Annually, within 120 days following the close of its fiscal year, each of
ALLTEL Financial and
Client will provide to the other a copy of its financial statements for the
most recent fiscal year.
27. Governing Law.[COMMENT70]
This agreement shall be governed by and construed in accordance with the laws
of the State of
Arkansas. The parties agree that exclusive jurisdiction and venue for the
resolution of disputes
under this Agreement shall be the state or federal courts located in Little
Rock, Arkansas.
28. Insurance.[COMMENT71]
A schedule of ALLTEL Financial's current insurance coverage is attached hereto
as Exhibit F.
ALLTEL Financial may alter such coverage at ALLTEL Financial=s discretion;
however,
ALLTEL Financial will not eliminate any such coverage if, in light of the
related risks, costs of
insurance and ALLTEL Financial=s then-existing financial condition, it would
not be prudent to
do so.
29. Entire Agreement, Warranty Disclaimers.[COMMENT72]
This Agreement constitutes the entire Agreement between Client and ALLTEL
Financial. This
Agreement may not be amended in any fashion except by written instrument,
executed by the
parties hereto, specifically providing for amendment thereof. EXCEPT AS
PROVIDED
HEREIN, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF MERCHANTIABILITY OR FITNESS FOR A PARTICULAR PURPOSE
ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned
representatives
of the parties, thereunto duly authorized as of the date first above written.
ALLTEL FINANCIAL INFORMATION SERVICES, INC.
FIRST MERCHANTS ACCEPTANCE CORPORATION
By:
By:
Name:
Collins A. Andrews
Name:
Mitchell C. Kahn
Title:
Vice President
Title:
President and Chief Executive Officer
SIGNATURE PAGE TO REMOTE OUTSOURCING AGREEMENT
Exhibit A
IMPLEMENTATION SCHEDULE
1. Implementation Plan.
ALLTEL Financial will install the Software systems and subsystems described in
Section 2
below for Client pursuant to a phased conversion plan. Such conversion plan
shall be mutually
agreed upon by ["CONFIDENTIAL PROTION OMITTED"] and shall clearly define the
detailed
roles and responsibilities of the parties. Subject to the terms and
conditions of such mutually
agreeable conversion plan, ALLTEL Financial shall convert Client's data on to
the ALLTEL
Financial Software systems and subsystems ["CONFIDENTIAL PORTION OMITTED"]
shall
be enlarged and ALLTEL Financial's obligation to perform its obligations to
complete the
conversion by March 1, 1997 and May 31, 1997, shall be enlarged to the extent
reasonably
necessary in the event (a) Client fails to submit data or materials in the
prescribed form or in
accordance with the conversion plan, (b) Client fails to perform the
responsibilities, tasks, and
functions required of Client under the conversion plan, (c) there occurs an
act of God or other
force major event beyond the reasonable control of ALLTEL Financial, or (d)
Client or any
governmental agency authorized to regulate Client makes any special requests
that negatively
affects the conversion plan. Pursuant to the completion of a mutually
agreeable conversion plan,
unless specifically set out in Section 2 below, ALLTEL Financial shall convert
such applications
on or before ["CONFIDENTIAL PORTION OMITTED"], and Client will complete on a
timely
basis its responsibilities under the Conversion Plan. If ALLTEL Financial's
time and
performance is not enlarged due to any one or more of the above occurrences
["CONFIDENTIAL PORTION OMITTED"] Upon receiving this demand, ALLTEL Financial
agrees to promptly make available to Client a certain number of mutually
agreeable additional
resources to more quickly achieve the completion of Client's conversion.
2. Software System and Subsystem Installations.
["CONFIDENTIAL PORTION OMITTED"]
3.Implementation Responsibilities.
All application installation dates are subject to completion of the steps set
forth in the following
"Implementation Responsibilities", on or before the dates set forth in the
conversion plan. Such
conversion plan shall be completed not later than ["CONFIDENTIAL PORTION
OMITTED"] The following table outlines the general implementation
responsibilities of the
parties which are subject to change in the final mutually agreed upon
conversion plan:
ALLTEL Financial Client
I. DATA GATHERING
A. Management Review
1. Finalize high level details of conversion X X
2. Define expectations of resource commitment and
responsibility from both ALLTEL Financial and Client X X
3. Discuss equipment and network issues and
expectations X X
B. Hardware/communications:
1. Assist in evaluation of current and needed
equipment including printers, administrative terminals,
controllers, phone lines, modems and
processor. X X
2. Define complete network specs. X X
3. Implement installation and testing schedule
for all equipment. X X
C. Identify Conversion Team
1. Conversion liaison (client coordinator) X
2. Client conversion team X
3. Decision maker (management representative)
for each application X
ALLTEL Financial Client
D. Product and Software Review
1. Gather specific product information/options X X
- Control Records
- Product type files
- Lookup files
- Transaction and report tables
2. Define differences between standard system
features and existing system features X X
3. Discuss account number formats X X
4. Special management reporting requirements X X
5. Determine "major" product/software
differences requiring management decision X X
6. Identify other products, services, etc. that
are needed which are outside of ALLTEL Financial's
responsibility, (i.e. support of customer software to
be retained, third party vendor support for
non-ALLTEL Financial products/systems) X
II. ANALYSIS AND SPECIFICATIONS
1. Create control records, Product Type, Lookup, Report
and Transaction Files X
2. Document field-to-field specifications
for all files to be converted X
3. Analysis of fields and values
for each master file X
4. Document product type files X
ALLTEL Financial Client
5. Document GL interface X
6. Document network configuration X
7. Implementation of network X
8. Document Control Records options used X
III. CLIENT REVIEW AND SIGNOFF
1. Review Control Records and other files with Client X X
2. Client signoff of specifications X
3. Discuss any new issues X X
4. Identify and order all supplies, forms, documents X X
5. Notify all third party vendors and schedule
change X
6. Work with current processor to develop and
implement a deconversion schedule and obtain
their commitment to the dates X
7. Obtain machine readable files as depicted in the
detailed conversion plan containing Client's data
from Client's current processor that are capable of
running on the ALLTEL Financial system X
IV. PROGRAMMING & SYSTEM TESTING
1. Code conversion programs and establish
test and production JCL X
2. Code custom user phases as required X
3. Test conversion programs by running and
balancing to totals provided X
ALLTEL Financial Client
4. Test run of production "day-one" to include
all reports and FMS interface X
5. Review of conversion and "day-one" test
output by programmers and CSR's X
V. TRAINING
A. On-line Training
1. Conduct training classes for key institution
personnel X X
2. Review on-line files and analyze to ensure any
problems found are resolved prior to
mock conversion X X
3. Review any new procedures in effect
after conversion X
4. Review control records with trainees X
5. Perform, training services outlined in Exhibit I. X
VI. MOCK CONVERSION
1. Receive current tapes and balancing reports
from existing processor X
2. Client enters "day-one" input on-line for
1-2 branches X
3. ALLTEL Financial runs and balances conversion and
day-one input X
4. Review, define and document all problems
encountered for correction prior to conversion X X
5. Review conversion and day-one output with
Client on-site X X
ALLTEL Financial Client
6. Final review of on-line screens from mock run
with Client X X
7. Review balancing procedures with Client X X
8. Evaluation of mock conversion with Client
Senior Management X X
VII. IMPLEMENTATION
1. Receive tapes and reports X
2. Provide ALLTEL Financial with current interest rates X
3. Load current interest rates X
4. Run conversion X
5. Balance converted files to totals from
previous processor X
6. Balance daily system runs X
7. Transmit reports X
8. Load and review on-line files X
VIII. POST - IMPLEMENTATION
1. Review reports X X
2. Assist with GL balancing X X
3. Answer application questions X
4. Resolve any problems that arise X X
5. Management review and evaluation of conversion X X
ALLTEL Financial Client
IX. PROJECT MANAGEMENT
1. Develop project plan to include all ALLTEL Financial
and Client deliverables relative to conversion project X X
2. Update project plan and provide conversion
team a copy of plan and summary status weekly X
3. Develop schedule for and conduct joint
project team meetings X X
4. Escalate to appropriate senior management
missed deliverables of both parties which
could impact the project schedule X
5. Client conversion coordinator will be
responsible for providing status of all
Client deliverables weekly to ALLTEL Financial
conversion coordinator for project plan update X
6. Participate in project management
methodology class X X
X. SENIOR MANAGEMENT PARTICIPATION
1. Establish EDP steering committee charter,
purpose and members X X
2. Appoint appropriate senior management
committee members X
3. Conduct EDP steering committee meetings on
a regularly scheduled basis to be chaired
by Client Account Executive and attended by
Client's President X X
ALLTEL Financial Client
XI. USER COMMITTEE PARTICIPATION
1. Establish user committee charter,
purpose and members X X
2. Appoint appropriate user committee members X
3. Conduct user committee meetings on a regularly
scheduled basis to be chaired by Client and
assisted by Account Executive X X
Exhibit B
REPORTS
1. ALLTEL Financial Reports.
Client may select from among the reports available for each of the
application systems
listed in Exhibit A, as set forth in the standard ALLTEL Financial user
documentation thereof.
Such documentation defines the intended use and frequency of each report.
Client may change
standard parameters of the requested reports, as defined in the standard
documentation, under the
terms outlined in Section 9.4 of this Agreement. Should Client desire
significant changes to the
intended report use and/or frequency, ALLTEL Financial shall conduct a
feasibility study of
Client's request, responding with a cost estimate for the requested report
changes. Such estimate
shall be developed in accordance with Section 9.4 of this Agreement.
Exhibit C
CHARGES
1. Conversion and Base Processing Fee.
1.1 Client shall pay a monthly Conversion and Base Processing Fee over the
life of the
Agreement according to the following fee schedule:
["CONFIDENTIAL PORTION OMITTED"]
1.2 Conversion and Base Processing Fees and Incremental Processing Fees are
billed and payable as defined in Section 15 of this Agreement.
1.3 The Conversion and Base Processing Fee after conversion shall include
processing of
those systems listed in Exhibit A under "System
Installations", at defined volumes of
accounts and transactions. Such volumes of accounts and transactions,
as well as
incremental volume charges, are defined in Section 3 of Exhibit C.
2. Base Processing Services.
After conversion to ALLTEL Financial Systems, the following provisions
shall apply:
2.1 Storage. ALLTEL Financial will provide optical data storage and
retrieval as part of the
Conversion and Base Processing Fee. The reports referenced in Exhibit B
for the host-based
applications will be available on-line through this optical system.
Applications consist of
the following:
["CONFIDENTIAL PORTION OMITTED"]
["CONFIDENTIAL PORTION OMITTED"] months of reports will be available with
on-line
access. Access to reports which are more than eighteen months old will
require operator
intervention to mount an archived optical platter resulting in an extended
response time.
2.2 Dedicated Resource Hours. In addition to ALLTEL Financial's personnel at
Client's
Corporate Headquarters, Client shall have a monthly allowance of 50
dedicated hours to be
used at Client's discretion ("Dedicated Hours"). Client may adjust this
allowance upward or
downward in 50 hour per month increments for periods of not less than
six (6) months in
duration with 90 days notice. The cost of each additional 50 hour
increment requested by
Client will be billed at ["CONFIDENTIAL PORTION OMITTED"] per increment.
Such
hours are available from the staff of the ALLTEL Financial Data Center and
are not
cumulative. In the event that Client shall not utilize all of the
dedicated hours provided for in
this Section during any month, Client shall not be entitled to any refund
or credit.
2.3 Dedicated On-Site Staff.
2.3.1 The dedicated staff (the "Dedicated Staff") maintained at Client's
site will include the
following:
(a) ["CONFIDENTIAL PORTION OMITTED"]
(b) ["CONFIDENTIAL PORTION OMITTED"]
2.3.2 All expenses including relocation expenses incurred by or on behalf
of the Dedicated
Staff are the responsibility of ALLTEL Financial.
2.3.3 Client will provide, at no cost to ALLTEL Financial, office space,
office supplies and
secretarial assistance for the Dedicated Staff. In addition,
Client will reimburse
ALLTEL Financial for reasonable and necessary business expenses
incurred by the
Dedicated Staff in the performance of its duties, including but
not limited to travel to
Client's branches, Client directed travel and after hours meals. Travel
expenses related to
Client request requiring Dedicated Staff travel to ALLTEL Financial's
Corporate
Headquarters will be paid by Client.
2.3.4 Client may request an increase of the Dedicated Staff at any time
throughout the
term of the contract and may request a decrease of the
Business/Analyst on or after the
eighteenth (18th) contract month following the first day of
assignment of such Dedicated
Staff at Client's site. At least one hundred twenty days (120) days
prior to the requested
date for such adjustment in Dedicated Staff, Client will notify ALLTEL
Financial in writing of
its request. Within thirty (30) days of receipt of such request, ALLTEL
Financial will
respond to Client with a quotation of fee schedule adjustment reflecting
the change in the
number of Dedicated Staff. Quotations for an increase or
decrease in the number of
Dedicated Staff will be in minimum increments of one employee for one
year from the date
of such adjustment (for an increase) or one employee for the remaining
term of the
Agreement (for a decrease).
2.3.5 Each on-site representative on the Dedicated Staff will possess at
least that degree of
skill and expertise required to perform the services contemplated
by this Agreement and
generally held by persons of similar employment. The efforts and
attention of the Dedicated
Staff will be fully directed to Client's business and the Dedicated
Staff will not
perform services for other clients of ALLTEL Financial, without the prior
consent of Client.
Client may establish, and ALLTEL Financial will adhere to, the priority of
tasks to be
accomplished by the Dedicated Staff. ALLTEL Financial shall select the
initial and any
replacement or additional members of the Dedicated Staff. Members of
the Dedicated
Staff are not employees or agents of Client for any purpose.
2.4 ALLTEL Financial Network Responsibility. Client is responsible for all
network
monitoring and network related components.
2.5 ALLTEL Financial Statement Rendering Responsibility. ALLTEL Financial
will
perform statement rendering services at its Little Rock, Arkansas
Output Processing Center.
ALLTEL Financial will print Client's loan statements, insert such
statements in envelopes,
and deliver such envelopes to the US Postal Service. ALLTEL
Financial's statement
rendering services will include the following:
General Services.
(a) ALLTEL Financial will supply a designated Customer Service Manager who
will
manage and coordinate: Client-specific materials specifications;
service implementation;
Client-specific operating procedures; on-going service delivery;
Client-specific quality
assurance programs; service invoicing; and, performance reporting.
(b) ALLTEL Financial will provide for printers and inserters and associated
usage,
maintenance and supply costs.
(c) ALLTEL Financial will manage form, envelope, insert and supply
inventories to
meet production schedule requirements.
(d) ALLTEL Financial will provide stock forms, envelopes and transportation
to postal
service facilities.
(e) ALLTEL Financial will provide ad hoc printing and mailing services on a
separately
priced and time available basis.
(f) ALLTEL Financial will add Postnet barcodes to print images prior to
printing and
transform printed formats to meet pre-determined format
specifications.
Electronic Print Services.
(a) ALLTEL Financial will prepare print logs for each job.
(b) ALLTEL Financial will be responsible for print job staging and printer
setup and
operation.
(c) ALLTEL Financial will perform quality checks.
Statement Insertion and Postage Application.
(a) ALLTEL Financial will prepare the internal and external mail control
documents
for each job.
(b) ALLTEL Financial will be responsible for job staging and inserter setup
and
operation.
(c) ALLTEL Financial will perform quality checks designed to minimize mail
preparation errors.
(d) ALLTEL Financial will sort, insert, weigh, and assign postage to all
statements.
Client Responsibilities.
(a) Client will provide inserts, including delivery to ALLTEL Financial in
compliance
with ALLTEL Financial's materials acceptance standards. Clients
inserts must be paper
which can be handled by ALLTEL Financial's automated inserter equipment.
(b) Client will provide ALLTEL Financial reasonable notice of required forms
change or
reimburse ALLTEL Financial for the direct cost of unusable inventory.
ALLTEL Financial
reserves the right to order up to six month's supply of custom
forms and envelopes.
Price Increases
ALLTEL Financial hereby reserves the right to increase any charges quoted
herein for statement rendering contained in Section 3.1 of this Exhibit upon
thirty (30) days written notice to Client; provided, however, that in no
event shall any increase in charges exceed the amount generated by the
"price formula" which equals [Confidential Portion Omitted] (in each case as
measured from the latest of the date hereof or the date of ALLTEL Financial's
most recent price increase), [Confidential Portion Obmitted] documented for
client
["CONFIDENTIAL PORTION OMITTED"]
Other Requirements.
(a) ALLTEL Financial will prepare U.S. Postal Service-specified manifesting
documents and
manifest archives as required to distribute mail on a manifested basis.
(b) The following materials will be used for Statements unless otherwise
specified:
1) 24 pound micro-perforated banner page with optional pre-printed color
logo;
2) standard 8.5x11 inch white (non pre-printed) 20 pound. paper for
sheets 2...n;
3) standard white envelopes;
- Mailing: #10 double cellophane window
- Remittance: #9 single die-cut window.
(c) All printing will be one sided, single-color (black).
(d) Reruns not caused by ALLTEL Financial Output Processing will be charged
to the Client at
standard prices.
(e) Client will notify ALLTEL Financial if it will include in a cycle more
than two (2) Inserts
per Statement. In such event, Client will allow ALLTEL Financial reasonable
additional time of
performance for such cycle. The number of Inserts shall be limited to the
capacity of ALLTEL
Financial's inserters, but in no event shall such requirement be more than (4)
Inserts per job.
(f) A typical (mail piece) will include:
1. Mailing envelope
2. Statement
3. Remittance envelope
4. Client-supplied inserts
(g) Wasted forms caused by changes to stock forms and/or envelopes will be
charged to the
Client at ALLTEL Financial's cost.
(h) Custom (pre-printed) statement will only be pre-printed on the Banner
page and will contain
logos only; return addresses, boxes and lines will be supplied by the printer.
(i) Client is responsible for reimbursing ALLTEL Financial for all postage
and/or delivery
costs for statement or other correspondence mailed by ALLTEL Financial at
Client's request and
on Client's behalf. Such costs will be charged to and paid by Client in
advance at ALLTEL
Financial's cost. Services are based on a forty-eight (48) hour turn around
time from statement
generation to the U.S. Postal Service delivery.
2.6 Report Printing Equipment. ALLTEL Financial will provide a report
printing system to be
installed at Client's corporate office and consisting of the following
components or comparable
components:
Xerox 4235 Laser Printer
Printer maintenance
Printer usage charge/impression up to 200,000 pages per month
PC 486, 66 MHZ, 270 MB HD, 4MB RAM
BARR Software
Should Client's report printing volume increase to the extent that the
configuration listed above
will no longer accommodate printing requirements or windows, ALLTEL Financial
will prepare
a proposal for additional or replacement printing components. Client will be
responsible for any
increase in costs resulting from the replacement or additional equipment due
to volume increases
or changing functional requirements.
2.7 Information Warehouse and Executive Notebook. The Conversion and Base
Processing Fee
includes the use of the Hewlett Packard hardware, Oracle software and related
components to run
the ALLTEL Financial Information Warehouse and Executive Notebook applications
at the
ALLTEL Little Rock Technology Center. ["CONFIDENTIAL PORTION OMITTED"]
increased volume or changing business requirements necessitate a change in the
hardware
configuration, ALLTEL Financial will prepare a proposal for such change and
upon Client
approval the monthly fee will be adjusted, up or down, to reflect the change.
The Hewlett Packard equipment and related components will be located at ALLTEL
Financial's
Little Rock Technology Center and ALLTEL Financial's resources will perform
the data base
administration, mainframe extracts, network and operations support, disaster
recovery and help
desk functions. Client will be responsible for all Client site PCs and LANs
required to support
the distribution of information and utilization of the Executive Notebook.
2.8 Performance Standards. The parties agree that timely and accurate
submission of input and
output is essential to satisfactory performance under this Agreement. The
parties acknowledge
that the following is a list of acceptable time performance standards. In the
event any
performance is suspected or deemed to be unacceptable, ALLTEL Financial shall
research the
cause, with Client's reasonable assistance, and will take corrective action
(where ALLTEL
Financial is responsible) or recommend corrective action (where Client is
responsible) and
initiate action for correction as soon as reasonably practicable. ALLTEL
Financial's failure to
achieve the below described performance standards shall not be grounds for
Client to terminate
the Agreement based on ALLTEL Financial's material breach.
2.8.1 On-Time Delivery - Output of Client. ALLTEL Financial shall achieve a
rolling three-month average of at least ["CONFIDENTIAL PORTION OMITTED"]
on-time delivery of all of
Client's output reports as described in Exhibit B. On-time delivery is
defined as availability of
the reports in the host queue to be downloaded by Client for printing. ALLTEL
Financial will
submit a written report to Client on a monthly basis with the result of the
previous month's
performance. The percentages used hereunder shall be calculated by dividing
the number of
reports that were delivered on-time by the number of reports required under
Exhibit B.
2.8.2 On-Line Uptime. As described herein, ALLTEL Financial shall
maintain a rolling three-month average of at least ["CONFIDENTIAL PORTION
OMITTED"] current production on-line uptime including RJE-availability,
exclusive of scheduled preventative maintenance, as
measured at the ALLTEL Financial communications controller. ALLTEL Financial
will submit
a written report to Client on a monthly basis with the results of the previous
month's
performance. Scheduled preventive maintenance will be at times designed to
minimize or avoid
disruption of Client's operations. The percentages used hereunder shall be
calculated by dividing
the number of hours that such on-line up-time was achieved by the number of
hours scheduled to
be available under Exhibit D.
2.9 Education Allowance. Over the term of this Agreement, a total of
["CONFIDENTIAL
PORTIION OMITTED"] participant spaces shall be provided to Client to attend
ALLTEL
Financial's standard user application training courses, Client may use these
["CONFIDENTIAL
PORTION OMITTED"] spaces at any time during this Agreement. Additional
courses are
available as defined in Section 7, Education, of this Agreement.
3. Incremental Processing Fees.
3.1 The following schedule defines the monthly fees for accounts and services
beyond those
provided for within the Conversion and Base Processing Fee, after conversion.
["CONFIDENTIAL PORTION OMITTED"]
3.1.1 "Account" is defined as an individual Account Master Record on the
System Account
Master File regardless of the status (with the exception of closed accounts
which are not counted)
of the Record/Account in the following application: Advanced Loan System.
Closed accounts
shall be purged per ALLTEL Financial's standard process.
3.1.2 Each additional million SIMS records read is priced at ["Confidential
Portion Omitted"] for
any portion of the
additional million records. For example, 300,000 additional records read
would be priced at an
increment of ["Confidential Porton Omitted"].
3.1.3 When account volumes exceed ["Confidential Portion Omitted"]
Advanced Loan System accounts,
ALLTEL
proposes to review pricing and delivery options and present a proposal for any
revisions as a
result of such increased volume. Any such revision would be mutually agreed
upon.
4. Conversion Charges.
4.1 ALLTEL Financial conversion fees do not include any vendor or other third
party charges
for hardware or software licenses, development, network or installation for
hardware and
software. ALLTEL Financial will manage and coordinate such activities with
the vendor or
other third party, but Client bears full responsibility for contracting with
the vendor or other third
party for these services.
4.2 Client will be responsible for all travel related costs as it pertains to
conversion, network
installation and training services activities.
5. Conversion Services.
ALLTEL Financial shall convert the systems listed in Exhibit A, subject to the
terms and
conditions set forth in this Agreement and associated Exhibits.
5.1 Conversion Methodology for System Implementation.
5.1.1 Conversion Management. ALLTEL Financial shall have responsibility
for overall
conversion management. ALLTEL Financial shall appoint a Conversion Manager
who will
coordinate the activities of both ALLTEL Financial and Client conversion
personnel and
determine if all other conversion parameters are being met as agreed upon.
Client and ALLTEL
Financial have agreed to conversion parameters including scope, content,
activities and
responsibilities as defined in Exhibit A, "General Conversion Plan". All
conversion activities
shall be carried out in a manner defined by ALLTEL Financial's Project
Management
Methodology. If the Conversion Manager determines that either group is not
acting in
accordance with these agreements, ALLTEL Financial and Client will act
promptly and
expeditiously to resolve such issue and to take steps designed to prevent its
reoccurrence.
5.1.2 Project Management Class. ALLTEL Financial shall provide a training
class to assist
Client in understanding and utilizing the project management methodologies
used by ALLTEL
Financial. Such class will be held at Client's location prior to December
1996, at a time which
will permit Client to utilize such training prior to finalizing the Specific
Conversion Plan. Client
will enroll its key conversion members, up to a total of ["CONFIDENTIAL
PORTION
OMITTED"] Client participants. ALLTEL Financial will provide a single PC user
license and
documentation for the project management software used in conjunction with the
Project
Management Course.
5.1.3 Client Test Files. Client will secure, on a timely basis, from
third party software vendors
whose systems are used at Client's site such permission as may be necessary or
appropriate to
permit the delivery of and Client will deliver to ALLTEL Financial, at ALLTEL
Financial's Data
Center, such test files, conversion tapes, file layouts and other
documentation which files, tapes,
layout and documentation ALLTEL Financial reasonably requests in connection
with the
conversions contemplated by Exhibit A.
Exhibit C
On-site Account Manager
Business Analysts On-Site
Client Services
Network Help Desk - Levels I,II,III
Annual Technology Review
Network Management and Monitoring
Application Processing
Information Warehouse Server, Software, Operations, Data
Base Administration
Updates to ALLTEL Systems
Defines customization requests
Incorporates approved customizations into base system
Provides test input
Completes test processing and provides test output to Client
Reviews test results and provides feedback to ALLTEL
Financial
Project Management
Development of Interface Support of CMSI to interface to ALS
Initial Training Services and Materials
End-User Training
Report Printing
Report Print System - Laser Printer 35PPM,pc,Software,
Maintenance,Printer Usage Charge
Telecommunications Wide Aarea Network (WAN) Lines and
Components,Maintenance, All locations
Local Area Network (LAN) - All components
Statement Printing/Rendering
Postage
Facilities for ALLTEL On-site Staff
Disaster Recovery - Data Center
Optical System-
Hardware/Software/Operations Support
Host Processing - Hardware/Software
Operations/Facility
On-line Devices for ALLTEL Staff
CMSI - Hardware,Software License
CMSI interface to ALS and updates thereto
Predictive Dialer
Predictive Dialer interface to KO
Transaction/Account Maintenance Input
CMSI CREDITREVUE SYSTEM ADMINISTRATION FUNCTION
RESPONSIBILITY MATRIX
HARDWARE
General System Administration
Perform Periodic Shutdown or System Reset Procedures
Monitor Performance During Periods of Degradation
Periodic Evaluation of Available or Depleting Disk Space
Configuration of Terminals or Workstations and Terminal Emulation Software
Configuration of Printers
Configuration of Bureau or Fax Modems
Configuration of Communication Server
Diagnose Suspected Hardware Related Problems
Purchase and provide Maintenance Agreement for HP Server and Related Hardware
Located at
ALLTEL Financial's Technology Center for CreditRevue
Disaster Recovery Services excluding network
OPERATING SYSTEM
Administration of User Login Accounts and Security
Administration of Network Configuration Files
Administration of Print Spoolers
Administration of Operating System Devise Configuration Files
Diagnose Hung or Lock Processes
Assist in Diagnosing Hardware Hung or Lock Situations
CMSI CREDITREVUE APPLICATION
Daily CreditRevue Database and Credit Bureau File Backup Procedures
Weekly CreditRevue System Backup
Monthly Full System Back-up
Database Server Startup/Shutdown Procedures
Bureau Process Start/Stop Procedures
Fax Process Start/Stop Procedures
Review Batch Processing Log Files for Status of Job Runs
Periodic Truncation of Log Files
Administration of CreditRevue User Accounts and Group Profiles
Monitor Performance of CreditRevue Sessions
Reset Violated User Accounts and Applications In-Use Flags
Diagnose Suspected Hung Processes or Dead-Lock Occurrences
Assist in Diagnosing Hardware Hung or Deadlock Occurrences
Purge and Archive Obsolete Application Information
Provide Training at Client's Expense for ALLTEL Financial's Staff to Perform
the Functions
Assigned to ALLTEL Financial above
Installation of Hardware. -Operating System and CMSI Software
Batch Interface to Advanced Loan System and updates thereto
ADDITIONAL SUPPORT SERVICES
ALLTEL Financial will provide additional support services, other than those
listed above, for the
HP Server and UNIX Operating System. Such additional support will be provided
to Client on a
Time and Material basis at rates outlined in this Agreement.
- -ALLTEL Financial will provide limited access to the Technology Center for
CMSI approved
personnel for the purposes of Client system integration, installation of the
Client dedicated
hardware and software, ongoing maintenance and ongoing support services of
CreditRevue.
Such access will be in compliance with ALLTEL Financial's reasonable security
standards and
regulations and only after CMSI has entered into a Non-Disclosure and
Operating Agreement
with ALLTEL Financial.-
- -ALLTEL Financial will allow direct dial up access to the CMSI/HP System for
authorized and
approved CMSI personnel for the purpose of updating and maintaining the
CreditRevue system.
Such dial-up access will conform to the technology, security and
telecommunications standards
agreed upon by ALLTEL Financial prior to system implementation. All costs
relating to this
dial-up provision will be the responsibility of the Client.
Exhibit D
INPUT/OUTPUT SCHEDULES
INPUT/OUTPUT SERVICE LEVELS
DESCRIPTION
TIME (CST)
All Input Files Received by ALLTEL Monday -Friday.
9:00 P.M.
All Input Files Received by ALLTEL Saturday
(Payments entered on-line Sunday will be processed in next processing cycle).
6:00 P.M.
Output Files Begin to be Available in the Output Queue
3:00 A.M.
Output Files are Complete in the Output Queue
7:00 A.M.
ON-LINE SERVICE LEVELS - HOST SYSTEM
DESCRIPTION
TIME (CST)
ALS On-line Host Availability Sunday - Saturday
6:00 A.M. to 11:00 P.M.
Collections On-line Host Availability Sunday - Saturday
*(Note: Collectors will have inquiry only access to ALS on Sunday, with
updates to Collections
from 6:00 A.M. to 11:00 P.M.)
6:00 A.M. to 11:00 P.M.
(On-line availability schedules are subject to weekly systems maintenance
windows, generally
scheduled early Monday A.M.)
CMSI CreditRevue system on-line availability
Client Defined
Exhibit E
ALLTEL FINANCIAL'S HOLIDAY SCHEDULE
ALLTEL Financial will observe the federal holidays listed below:
New Year's Day
Martin Luther King Day
Presidents Day
Memorial Day
Independence Day
Labor Day
Veterans Day
Thanksgiving Day
Christmas Day
Data processing services will not be available New Year's Day, Memorial Day,
Thanksgiving
Day and Christmas Day. Subject to Client's pre-defined need, data processing
services will be
available on the remaining holidays with a reduced staff.
Exhibit F
INSURANCE COVERAGE
Type of Coverage
Limit
Insuranc Company
Remarks
Commercial
General
Liability
$1,000,000 each occurrence
Cincinnati Insurance Company
Bodily injury and property damage; combined limit.
$5,000 premises medical each person
Contents
Variable
Cincinnati Insurance Company
Blanket coverage $100,000 deductible.
Data Processors
Errors and Omissions
$25,000,000 domestic coverage
Cincinnati Insurance Company
$25,000,000 each occurrence and aggregate.
$250,000 deductible.
Equipment
Blanket Coverage
Cincinnati Insurance Company
$15,000,000 extra expense and business income for any one loss.
An all risks policy covering owned and leased equipment for replacement cost
at each location
with $100,000 deductible for all losses from any one event.
$1,000,000 with $25,000 deductible in transit. Data processing media coverage
included.
Automobile
$1,000,000 each occurrence
Cincinnati Insurance Company
Owned, hired and non-owned vehicles.
Worker's Compensation
Coverage A- statutory
Coverage B-
$100,000 each
accident
$100,000 each
employee - disease
$500,000 policy limit
- disease
Cincinnati Insurance Company
except in monopolistic states - State Funds in Maine - coverage provided by
Maine Mutual
Coverage provided as required by state law and other statutes.
Fidelity Coverage
$10,000,000
Blanket Bond
Cincinnati Insurance Company
Employee dishonesty
$100,000 deductible.
Umbrella
$50,000,000
Cincinnati Insurance Company
Fiduciary liability specifically excluded.
Effective January 1, 1996.
Exhibit G
GUIDELINES FOR
DISASTER RECOVERY RESPONSIBILITIES
In order to effectively maintain and manage the data processing requirements
during a declared
disaster, certain guidelines are required to be mutually agreed upon by both
the data processing
provider and the client of the provider.
Following are a series of definitions utilized in describing disaster recovery
processing and an
outline of responsibility requirements to compliment the disaster processing.
Definitions: As used within this Exhibit, the following terms will have the
indicated meanings:
(a) "Disaster" - an event that causes, will cause or which is reasonably
expected to cause the
processing capabilities of the ALLTEL Financial Data Center to be unavailable
to the Client for
a period of 72 hours or more.
(b) "ALLTEL Financial Data Center" - the ALLTEL Financial data processing
facility from
which data processing services for the Client are performed by ALLTEL
Financial: For this
Exhibit, this is either the Little Rock Technology Center, located in Little
Rock or another
ALLTEL Financial Technology Center in another city, at this time unnamed.
(c) "Recovery Facility" - the hot site disaster recovery facility provided by
the ALLTEL
Financial Data Center pursuant to contractual agreement for both batch and
on-line testing and
processing.
(d) "Local Network" - the dedicated telecommunications trunk lines between
the ALLTEL
Financial Data Center and the local telephone company office, and the
telecommunications
equipment used for receipt and transmission of data between the Client and the
ALLTEL
Financial Data Center.
(e) "Disaster Recovery (D/R) Network" - the telecommunications lines between
the local
telephone company offices and the Recovery Facility and the network equipment
installed at the
Recovery Facility to be used for disaster recovery testing and for data
communications between
the Client and the Recovery Facility in the event of a Disaster Declaration by
the ALLTEL
Financial Data Center.
ALLTEL Financial Client
1. Declares the Disaster Condition and communicates
this declaration to the Recovery Facility and clients X
2. Maintains the contract for a Recovery Facility to
provide critical processing activities in the event
a Disaster Condition is declared X
3. Designs and Manages the D/R Network X
4. Provides telecommunications equipment. X
5. Restores the Operating Environment at the hot site X
6. Restores On-Line and Batching processing at the hot site X
7. Maintains copies of the operating environment, and
application data files for back up
and recovery purposes X
8. Maintains copies of five business days input data files
transmitted to the ALLTEL Financial Data Center, by date
transmitted for back up purposes X
9. Maintains copies of source documents entered on line
by date entered for back up purpose X
10. Provides a named disaster recovery liaison and alternate
to facilitate communication during a disaster condition X X
11. Provides periodic processing status updates during a
declared disaster of no less than six hour intervals X
12. Maintains a current Disaster Recovery Plan X X
ALLTEL Financial Client
13. Provides and maintains a Data Center Disaster Recovery
Client Manual which contains information relative
to the ALLTEL Financial Data Center Disaster Recovery Plan.
This manual will be updated and distributed to the
clients as needed, no less than annually X
14. Maintains an internal user contingency plan which
contains information specific to Client needs and
requirements that integrates to the ALLTEL Financial Data
Center recovery processes X
15. Defines written documentation and notice of the test
requirements including the date and time for the
annual test X
16. Provides written documentation and notice of the test
requirements, including the date and time for the
annual test X
17. Participates in and funds their own costs for an annual
scheduled test of the hot site and the Disaster Recovery
network X X
18. Develops D/R test scripts relative to specific Client
Operations for use in the D/R annual test X
19. Develops the hot site recovery test script for the
annual test X
20. Publishes and distributes a written documentation
summary of the test results X
21. Provides training in utilization of Recovery Center
processing for its employees X X
22. Defines the prescribed plan for restoration of the Processing
Environment and application recovery priority procedures
and schedules for production at the Recovery Facility X
ALLTEL Financial Client
23. Declares the Disaster Condition resolved and migrates
processing back to the normal ALLTEL Financial Data Center X
24. Develops and maintains contingency plans which will
allow their institution to function without data processing
services for a period of 72 hours or more X
25. Provide courier service to and from the Recovery Facility
when tests are performed or a Disaster condition
is declared X
26. Provides disaster notification to local agencies or
organizations such as: State Banking Department, FDIC,
Clearinghouse Associations, Federal Reserve, etc. X
27. Provides Data Center Disaster declaration press release
information and media statements X
28. Provides Client Disaster declaration press release
information and media statements X
Exhibit H
SOFTWARE LICENSE AGREEMENT
1. Provision of Software.
1.1 In accordance with Section 5 of the Remote Outsourcing Agreement (the
"Agreement"),
between ALLTEL Financial Information Services, Inc. ("ALLTEL Financial")
and First
Merchants Acceptance Corporation (the "Client"), effective on the
Expiration Date or the
earlier Termination Date if this Agreement is terminated by Client
pursuant to the provisions
of Section 17.1, ALLTEL Financial agrees to license and furnish to
Client the ALLTEL
Financial application systems listed in Exhibit A(2) to the Agreement if
such systems are
installed prior to the expiration or termination of the Agreement. Such
application systems
are hereinafter referred to as the "Software". The software license for
the above referenced
application systems will be furnished at no additional cost to Client
provided,
however, that prior to the Expiration Date ( or earlier Termination Date
), Client shall be
required to enter into ALLTEL Financial's software maintenance
agreement which shall
include Client's obligation to pay ALLTEL Financial its then current
software maintenance
fees. All capitalized terms not otherwise defined herein shall
have the same meaning
as described thereto in the Agreement.
2. Documentation.
2.1 For each item of Software, ALLTEL Financial shall also deliver to Client
a complete
set of standard operational instructions and documentation, including,
but not limited to, the
Software source code in machine readable form; a copy of ALLTEL
Financial's standard
associated control statements used for operation, development,
maintenance and use of the
source code, and any other documentation which is provided by ALLTEL
Financial to its
other similar customers. Such documentation and other materials are
hereinafter referred to
as "Documentation."
2.2 Subject to the provision of Section 4, below, ALLTEL Financial agrees to
deliver to
Client copies of any revisions, improvements, enhancements,
modifications and updates to
the Documentation which are produced by ALLTEL Financial.
2.3 Client may copy the Documentation provided hereunder in order to satisfy
its own
internal requirements. If Client requests, ALLTEL Financial agrees
to furnish additional
copies to Client at ALLTEL Financial's then standard fee for such
copies.
3. Term and Use Restrictions.
3.1 This is a perpetual license. Client acknowledges that the licensed
Software and all related
Documentation constitute valuable assets and trade secrets of ALLTEL Financial
and that all
information with respect thereto is confidential. The Software is licensed to
Client only for use
by Client for itself, its subsidiaries and affiliates.
3.2 Client agrees to safeguard the licensed Software with at least the same
degree of care that it
exercises with respect to its own confidential and proprietary information,
and shall take all
reasonable precautions to assure that its employees and representatives do not
sell, lease, assign,
or otherwise transfer, disclose or make available, in whole or in part, the
licensed Software or
Documentation thereof to any third party for any reason (except for employees
of Client, for
auditing purposes by independent certified public accountants, for complying
with applicable
governmental laws, regulations or court orders or for the limited disclosure
to customers of
Client of user manuals and similar information which must be disclosed in
connection with
providing data processing services by Client). In no event, however, shall
any competitor of
ALLTEL Financial be furnished with the Software, the Documentation or any
information,
directly or indirectly, concerning the Software or the Documentation.
3.3 The licensed Software and all related Documentation and materials may be
used by Client
and maintained at one location, only as set forth below (the "Installation
Site") and may not be
used by Client or any other person at any other location or facility;
provided, however, that
Client may change the location where it uses the licensed Software upon prior
written notice to
ALLTEL Financial and delivery of a written certificate that all use of the
licensed Software shall
be limited to such new location. The Installation Site shall be as follows:
570 Lake Cook Road,
Deerfield, Illinois.
3.4 All modifications to the licensed Software developed as a result of joint
efforts by ALLTEL
Financial and Client shall become the exclusive property of ALLTEL Financial,
subject to all of
the terms and conditions of this License Agreement, including the right of
Client to use such
modifications in accordance herewith and including the foregoing agreements of
Client with
respect to disclosure of and/or access to such modifications. Modifications
to the licensed
Software developed solely by Client without the participation of ALLTEL
Financial shall be
considered to be part of the Software for purposes of determining Client's
obligations under this
Section 3; provided, however, that Client shall have the exclusive right to
use any such
modifications it may develop, and ALLTEL Financial shall have no right to
market such
modifications without Client's express written consent.
3.5 Client further acknowledges and agrees that, in the event of a breach or
threatened breach by
Client of any provision of this Section 3, ALLTEL Financial will have no
adequate remedy in
money or damages and, accordingly, shall be entitled to appropriate injunctive
relief. However,
no specification in this License Agreement of a specific legal or equitable
remedy shall be
construed as a waiver or prohibition against any other legal or equitable
remedies in the event of
a breach of any provision of this Agreement.
3.6 ALLTEL Financial retains title to the Software provided hereunder and
does not convey any
rights or proprietary interest therein to Client, other than the license as
specified herein.
3.7 Upon the termination by ALLTEL Financial of this License Agreement or any
licenses
granted to Client hereunder, Client agrees to promptly cease using and return
to ALLTEL
Financial all software involved and Documentation related thereto and all
copies thereof. Such
return shall also be accompanied by a written certificate, signed by an
appropriate executive
officer of Client, to the effect that all such Software, related Documentation
and copies thereof
have been so returned to ALLTEL Financial.
3.8 ALLTEL Financial hereby acknowledges and agrees that Client shall have
the right to
modify any of the Software provided to Client hereunder and may use and
combine such with
other programs and/or material to form an updated work. Such modifications to
the licensed
Software, either alone or in combination, shall become part of the licensed
Software and shall be
subject to all of the terms and conditions of this License Agreement,
including the right of Client
to use such modifications in accordance herewith and including the agreement
of Client to limit
the use of, the disclosure of and/or access to, such modifications.
3.9 Client acknowledges that all PC-based Software ("Micro Software") is
released in object
code only. The following additional provisions shall be applicable to Micro
Software:
(a) Client may copy the Micro Software and use it on multiple microprocessors
solely for the
benefit of Client and Client's affiliates including, but not limited to,
Client's parent holding
company, its subsidiaries and affiliates. The documentation for the Micro
Software may be
similarly copied and utilized. At Client's option, additional copies may be
made either by Client
or by ordering the same from ALLTEL Financial at ALLTEL Financial's standard
rates.
(b) All other restrictions on use, copying or disclosure of the Software
licensed hereunder shall
also apply to the Micro Software and its documentation. In addition, Client
may not provide data
processing services using the Micro Software to any person, firm, or
corporation (other than
Client's affiliates and subsidiaries and those correspondents of Client that
ALLTEL Financial
was processing as of the Expiration Date or earlier Termination Date) without
the prior written
consent of ALLTEL Financial and the payment to ALLTEL Financial of additional
license fees.
(c) In consideration of the right to make and use the additional copies
granted in Section 3.9(a)
above, Client agrees and acknowledges that all support for end-users of the
Micro Software will
be supplied by Client's personnel, and that ALLTEL Financial is not
responsible for providing
any Micro Software support services to end-users.
4. Enhancements.
Within ninety (90) days of its delivery of a termination notice, as provided
in the Agreement, or
within ninety (90) days preceding the Expiration Date, as set forth in the
Agreement, Client may
elect to purchase program maintenance from ALLTEL Financial for the licensed
Software. All
updates, modifications and enhancements (the "Updates") to the Software, if
any, (once
incorporated into any Software hereunder) shall be deemed to be part of the
license Software for
all purposes hereunder. In the absence of Client's purchase of program
maintenance thereafter,
ALLTEL Financial shall not be obligated to deliver Updates or related
Documentation to Client.
If Client exercises this option, Client agrees to pay ALLTEL Financial its
current software
maintenance rate(s) then in effect for such system(s).
5. Warranties.
5.1 ALLTEL Financial warrantys to Client that: (i) ALLTEL Financial has
the right to furnish the Software, Documentation and other materials
provided to Client hereunder free of all leins, claims, emcumberances
and other restrictions; and (ii) Client shall quietly and peacefully
possess the Software, Documentation and other materials provided to
Client hereunder, subject to and in accordance with the provisions of
this License Agreement.
5.2 ALLTEL Financial warrants and represents that the licensed Software will
perform, on an appropriately configured IBM computer system, in the
manner described in the Documentation thereof.
5.3 EXCEPT AS PROVIDED HEREIN, ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.
6. General.
6.1 Taxes. Client agrees to pay all taxes levied by a duly constituted
taxing authority against or
upon Client's use of the Software or arising out of this License Agreement;
exclusive, however,
of taxes based on ALLTEL Financial's income, which taxes shall be paid by
ALLTEL Financial.
Client agrees to pay any tax for which it is responsible hereunder, which may
be levied on or
assessed against Client directly, and, if any such tax is paid by ALLTEL
Financial, to reimburse
ALLTEL Financial therefore, upon receipt by Client of proof of payment
reasonably acceptable
to Client.
6.2 Patent and Copyright Infringement. ALLTEL Financial agrees to defend
and/or handle, at
its own expense, any claim or action brought by any third party against Client
for actual or
alleged infringement of any patent, copyright or similar property right
(including, but not limited
to, misappropriation of trade secrets) based upon the Software or
Documentation furnished
hereunder by ALLTEL Financial. ALLTEL Financial further agrees to indemnify
and hold
Client harmless from and against any and all liabilities, losses, costs,
damages, and expenses
(including reasonable attorneys' fees) associated with any such claim or
action incurred by
Client.
(a) ALLTEL Financial shall have the sole right to conduct the defense of any
such claim or
action and all negotiations for its settlement or compromise, unless otherwise
mutually agreed to
in writing between the parties hereto.
(b) ALLTEL Financial agrees to give Client prompt written notice of any
written threat, warning
or notice of any such claim or action against ALLTEL Financial or any other
use or any supplier
or components of the Software covered hereunder, which could have an adverse
impact on
Client's use of same, provided ALLTEL Financial knows of such claim or action.
6.3 Limitation of Liability. If ALLTEL Financial shall breach any covenant,
agreement or undertaking required of it by this License Agreement, the
liability of ALLTEL Financial to Client shall be limited to Client's
direct damages, actually incurred, which under no circumstances
shall exceed the amount of fees paid by Client to ALLTEL Financial
under the Remote Outsourcing Agreement. Client Acknowledges that
ALLTEL Financial is not and shall not be laible for any special,
consequential or punitive damage or loss of revenue suffered by Client.
6.4 Material Breach. In the event of any material breach of the Agreement by
Client, ALLTEL
Financial may (reserving cumulatively all other remedies and rights under this
License
Agreement in law or in equity) terminate this License Agreement, in whole or
in part, by giving
ninety (90) days' prior written notice thereof; provided, however, that this
License Agreement
shall not terminate at the end of said ninety day notice period if Client has
substantially cured the
breach of which it has been notified prior to the expiration of said ninety
(90) days. In the event
of such a termination by ALLTEL Financial pursuant to this Section 6.4, Client
will promptly
discontinue its use of the licensed Software and related Documentation and
shall return to
ALLTEL Financial all copies thereof in its possession or control. Such return
shall also be
accompanied by a written certificate, signed by an appropriate executive
officer of Client, to the
effect that all such Software, related Documentation and copies thereof has
been so returned to
ALLTEL Financial. In addition, Client agrees that monetary damages will not
be sufficient to
compensate ALLTEL Financial in the event of any actual or threatened breach by
Client of any
restriction on Client's use of the licensed Software or Documentation provided
in this License
Agreement and that, in such event, ALLTEL Financial shall be entitled to
injunctive and other
equitable relief which may be deemed necessary or appropriate by any court of
competent
jurisdiction.
6.5 Bankruptcy. Notwithstanding anything in this License Agreement to the
contrary, either
party hereto shall have the right to immediately terminate this License
Agreement upon notice to
the other in the event of the other's insolvency; receivership; or voluntary
or involuntary
bankruptcy; in the event of the institution of proceedings therefor, or in the
event of assignment
for the benefit of creditors; or in the event any substantial part of the
other's property is or
becomes subject to any levy, seizure, assignment or sale for or by any
creditor or governmental
agency without being released or satisfied within thirty (30) days thereafter.
In the event of such
a termination by ALLTEL Financial pursuant to this Section 6.5, Client will
promptly
discontinue its use of the licensed Software and related Documentation and
shall return to
ALLTEL Financial all copies thereof in its possession or control. Such return
shall also be
accompanied by a written certificate, signed by an appropriate executive
officer of Client, to the
effect that all such Software, related Documentation and copies thereof have
been so returned to
ALLTEL Financial. Notwithstanding the foregoing, no such termination shall
have any effect
upon Client's obligation to pay ALLTEL Financial any amount due hereunder.
6.6 Notices. Any notices or other communications required or permitted to be
given or
delivered under this License Agreement shall be in writing (unless otherwise
specifically
provided herein) and shall be sufficiently given if delivered personally or
mailed by first-class
mail, postage prepaid,
If to Client: First Merchants Acceptance Corporation
570 Lake Cook Road
Deerfield, Illinois 60015
Attention: President
If to ALLTEL Financial: ALLTEL Financial Information Services, Inc.
4001 Rodney Parham Road
Little Rock, Arkansas 72212-2496
Attention: President
or to such other address as either party may from time to time designate to
the other by written
notice. Any such notice or other communication shall be deemed to be given as
of the date it is
personally delivered or when placed in the mails in the manner specified.
6.7 Advertising or Publicity. Neither party shall use the name of the other
in advertising or
publicity releases without securing the prior written consent of the other.
6.8 Assignment. This License Agreement shall be binding upon the parties and
their respective
permitted successors and assigns. Client may not sell, assign, convey or
transfer, by operation of
law or otherwise, any of its rights or obligations hereunder without the prior
written consent of
ALLTEL Financial and any such attempted transfer shall be void.
6.9 Governing Law; Jurisdiction and Venue. The validity of this License
Agreement, the
construction and enforcement of its terms, and the interpretation of the
rights and duties of the
parties shall be governed by the laws of the State of Arkansas. Client and
ALLTEL Financial
hereby consent and agree that jurisdiction and venue for any claim or cause of
action arising
under this Agreement with respect to the validity, construction or enforcement
hereof shall be
properly and exclusively in the state or federal courts located in Little
Rock, Arkansas, and
expressly waive any and all rights they may have or which may hereafter arise
to contest the
propriety of such choice of jurisdiction and venue.
6.10 Modification, Amendment, Supplement and Waiver. No modification,
amendment,
supplement to or waiver of this License Agreement or any of its provisions
shall be binding upon
the parties hereto unless made in writing and duly signed by both parties or
the party to be
charged, as appropriate under the circumstances. A failure or delay of either
party to this License
Agreement to enforce at any time any of the provisions hereof, or to exercise
any option which is
herein provided, or to require at any time performance of any of the
provisions hereof, shall in no
way be construed to be a waiver of such provision of this License Agreement.
6.11 Severability. In the event any one or more of the provisions of this
License Agreement
shall for any reason be held to be invalid, illegal or unenforceable, the
remaining provisions of
this License Agreement shall be unimpaired, and the invalid, illegal or
unenforceable provision
shall be replaced by a mutually acceptable provision, which being valid, legal
and enforceable,
comes closest to the intention of the parties underlying the invalid, illegal
or unenforceable
provision.
6.12 Headings. The headings in this License Agreement are for purposes of
reference only and
shall not in any way limit or affect the meaning or interpretation of any of
the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this License Agreement as
of the
day, month and year first above written, by the undersigned officers thereunto
duly authorized.
ALLTEL FINANCIAL INFORMATION SERVICES, INC.
FIRST MERCHANTS ACCEPTANCE CORPORATION
By:
By:
Name:
Name:
Title:
Title:
Date:
Date:
Exhibit I
TRAINING SERVICES
ALLTEL Financial will provide the following training services and materials as
set forth in this
Exhibit I which are included in the fees contained in Exhibit C.
1. Overview. ALLTEL Financial shall provide two categories of training to
Client. The first
category, "Course Offerings", will lay the foundation for decision making and
implementation of
the ALLTEL Financial applications and will include computer-based training
courses, self-study
materials and classroom courses. The second category, "End User Solutions",
will encompass
the design, development, management and delivery of training for the direct
customer contact
employees and will include computer-based training programs and end user
training manuals, as
well as the following seven phase training management process: training
design assessment,
training planning session, audience training analysis, training design
support, train-the-expert for
account servicing centers, management team communications, and follow-up
evaluation.
2. Course Offerings. ALLTEL Financial's course offerings address the needs
of Client's
conversion project team members. The education process that ALLTEL Financial
recommends
includes the following:
(a) Project Team Education. ALLTEL Financial 's standard education courses
teach an
overview of the entire breadth of applications. The audience is the project
team members who
make decisions about how Client will utilize the applications to meet its
business needs. These
courses will provide the basis for decision making and lay the foundation for
the conversion
project.
Phase 1: Computer-Based Training Courses
A curriculum of Computer-Based Training (CBT) courses serves as both a
prerequisite and as
education in itself. With CBTs, participants work at their own pace using
personal computers.
This series of CBTs will familiarize employees with the ALLTEL Financial
systems.
["Confidential Portion Omitted"]
Phase 2: Classroom Courses
Classroom courses are divided into two categories: Application Technical
Classes and
Application Features/Functions Classes. Application Technical Classes teach
skills and technical
issues required by programmers and business analysts. Application
Features/Functions Classes
concentrate on the features and functions of each system from a decision
making perspective.
(b) Client Participation. ALLTEL Financial will provide Client
participation in the course
offerings at the following levels:
["CONFIDENTIAL PORTION OMITTED"]
See the Training and Education Course Catalog for class descriptions.
Additional course
enrollments will be available at current client rates. All course offerings
are subject to Training
and Education's current policies and procedures. Enrollment may be scheduled
with ALLTEL
Financial's account manager or designated enrollment coordinator.
3. End User Solution. ALLTEL Financial's end user solutions address the
needs of
Client's direct customer contact employees. The process that ALLTEL Financial
recommends
includes the following phases:
(a) Training Management.
Phase 1: Training Design Assessment
During the Training Design Assessment, ALLTEL Financial consultants will
evaluate the effect
of the new technology on Client's employees. The findings of the study will
assist Client in
transitioning to a new operating environment.
During this phase 1, ALLTEL Financial will:
Obtain answers to a training questionnaire focusing on the specific training
issues of Client.
Conduct on-site interviews with managers, supervisors, and other key employees
that represent a
functional cross section of the servicing function of Client.
Develop a Training Design Study that is reviewed by Client management to
include:
Project Definition - Defines the scope and objectives of the study.
Loans Staffing, Organization Structure & System Environment - Summarizes
Client's current
structure and processing environment.
Current Lending Training Environment - Documents the current process for
training Client's
employees on the loan system.
Lending Audience Review Summary - Summarizes the interviews and the impact on
your overall
training needs for Client.
Issues and Assumptions - Addresses the issues expressed by employees and
ALLTEL Financial's
consultants during the interview process. Assumptions will be made and
documented along with
any unresolved issues related to the conversion.
Recommendations for the training activities at Client.
Phase 2: Training Planning Session
The ALLTEL Financial Project Leader will conduct a planning session which
includes the
following activities:
During this phase 2, ALLTEL Financial will:
Recommend appropriate end user representatives to form a Conversion Training
Committee.
The committee should be comprised of end user representatives affected by the
conversion such
as Account Servicing Centers, marketing, conversion project team members, etc.
Facilitate a planning session with Client's conversion training committee and
representatives
from Training Services conversion team to establish training project
milestones.
Determine the project steps that, in turn, will be used to build the training
project plan.
Phase 3: Audience Training Analysis
Following the Training Planning Session the Project Leader will work with
Client to analyze the
training audience to determine the entire scope of the training.
During this phase 3, ALLTEL Financial will:
Size the training audience by providing an Audience Training Matrix tool.
This detailed matrix
will be organized by department and will summarize the level of loans training
each group
requires.
Analyze the results of the matrix to finalize the design of the training
delivery and materials.
Phase 4: Training Design Support
During the Training Design Support Phase ALLTEL Financial 's Project Leader,
together with
other ALLTEL Financial's consultants and Client's Training Coordinator will
design the training
program, tailor the training materials, and monitor the training project plan.
During this Phase 4, ALLTEL Financial will:
Determine and recommend the appropriate method of communication to Client's
employees
affected by training, such as newsletters, employee memos, incentive plans,
etc.
Customize the training materials including manuals, quick references and
practice sessions.
Work with Client's enrollment coordinator to schedule Client's training
sessions and establish
enrollment procedures.
Determine class needs such as equipment and sign-ons.
Recommend the staffing options for conducting the classroom instruction. (If
Client chooses
direct involvement by ALLTEL Financial in end user training activities, a
specific proposal will
be made.)
Monitor the training plan and completion of the deliverables by ALLTEL
Financial and Client.
Finalize the training design and establish the appropriate use of
Train-the-Expert and any training
delivered by Client resources.
Develop the "expert" selection criteria and certification process.
Determine the use of practice sessions and testing to be used as the
measurement of competency
achieved by trainees.
Participate in establishing a method for ongoing maintenance of training
materials.
Obtain training project deliverable sign-offs.
Phase 5: "Train-the-Expert" for Account Servicing Center
The "Train-the-Expert" approach is designed to train Client's Account
Servicing Center
supervisors or other key work leaders so they can, in turn, train their own
employees in small
group or one-on-one sessions.
During this phase 5, ALLTEL Financial will:
Teach an onsite "Train-the-Expert" class to Account Servicing Center
individuals that Client
designates as "experts". This class will teach the ALLTEL Financial
applications used by
Client's loan operations employees. The maximum participation is twelve
"experts" per class
module.
Coach individual "experts" so they can, in turn, train their employees.
Phase 6: Management Team Communication
A certain level of management, not directly involved in the training, will
require a high-level
overview of the applications.
During this phase 6, ALLTEL Financial will provide one session introducing the
features and
functions of the applications. This session will have a maximum of twenty
participants.
Phase 7: Follow up Evaluation
During this phase 7, ALLTEL Financial will:
Evaluate training activities through interview sessions and/or questionnaires
as appropriate.
Provide a report of findings to appropriate Client management.
(b) Training Products.
ALLTEL Financial will provide end user training materials to support the
following ALLTEL
Financial applications:
Advanced Loan System (ALS)
On-line Collections (KO)
(I) Computer-Based Training Program - "Performing Basic Inquiries"
A computer-based training (CBT) program titled, "Performing Basic
Inquiries,"
will be used as an introduction to the conversion training on the Advanced
Loan System (ALS).
A specific study guide for Client will also be tailored to accompany the CBT
instruction and will
be provided on a Microsoft Word for Windows diskette for future customization
by Client. One
master copy of the CBT is delivered on one 3 1/2" diskette for use on IBM
compatible personal
computers with hard drives. Client is responsible for all duplication and
distribution.
Although Client's CBT is a PC version, the CBT can be delivered
through a
mainframe or LAN presentation system from Legent Corporation. This software,
Phoenix
Presentation System, must be purchased separately by the Client. Phoenix
version 7.5 or higher
is required to be compatible with our courseware. If you would like a
mainframe version created
there are minimal additional charges.
(ii) End User Training Manuals
ALLTEL Financial has developed generic end user training manuals for Advanced
Loan System
and On-line Collections System which will be customized to fit Client's use of
the ALLTEL
Financial software for both branch and back office functions. These end user
training manuals
are arranged in modules by application topics such as Inquiry, New Accounts,
Maintenance and
Monetary. The manuals can be regrouped by job functions such as new accounts
representative,
customer service, loan assistant, etc. During the training design, decisions
will be made as to the
most effective use of these modules. This proposal includes a specific number
of hours of
customization to each application.
The training materials developed are designed to teach the use of the system
to the end user.
ALLTEL Financial consultants will assist Client in editing the manuals to
match Client's use of
the applications. Once the customization is complete, a Microsoft Word for
Windows diskette of
the contents will be given to Client for additions, changes, future system
updates, and the
addition of policies and procedures as you require. One copy will be provided
to Client for
printing and distribution.
(iii) Practice Sessions
Practice sessions will be provided which allow hands-on practice of the
functions learned to
monitor the participant's understanding and/or to clarify any problem areas.
(iv) Evaluations
Evaluations of the participants, instructor, course, etc., will be provided in
efforts to provide that
quality training is taking place.
(v) Quick Reference Tools
Quick reference tools will be provided which assist the user in efficiently
processing day to day
transactions. These quick references will be customized to fit Client's
particular needs.
All materials will be provided on a Microsoft Word for Windows diskette and as
one camera
ready copy for printing and distribution by Client.
4. Proposal Assumptions. The above training program is based on the following
assumptions
and Client's requirements:
(a) Client will dedicate a training coordinator to the conversion training
project.
(c) Client will complete systems decisions and user acceptance testing prior
to the expected
delivery date of training.
(d) Client will designate resources who have the authority to sign off on
training design,
delivery, and materials.
(b) ALLTEL Financial will manage the training project; however, ALLTEL
Financial will
provide varying levels of participation, where specific expertise is required.
(e) Client will provide training facilities with terminals.
(f) The "Performing Basic ALS Inquiries" computer-based training program will
be the only
training required by Client's Dealer Service Centers.
Certain confidential information has been omitted where indicated and filed
separately with the
Securities and Exchange Commission.
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of this 1st day of June, 1996,
between FIRST
MERCHANTS ACCEPTANCE CORPORATION, a Delaware corporation, referred to herein
as
"FMAC" and MITCHELL C. KAHN, an individual, referred to herein as "Kahn".
WHEREAS, Kahn and FMAC have heretofore entered into an Employment Agreement
dated
May 23, 1991, as amended and renewed (the "Original Agreement") pursuant to
which Kahn has
served as President and Chief Executive Officer ("CEO") of FMAC; and
WHEREAS, the Original Agreement has expired by its terms as of May 31, 1996;
and
WHEREAS, FMAC desires to retain the services of Kahn as President and CEO and
Kahn
desires to continue on in such position; and
WHEREAS, the parties desire to renew, amend and restate the Original Agreement
on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the respective agreement of the parties
contained
herein, it is agreed as follows:
1. Employment. FMAC hereby employs Kahn, and Kahn hereby accepts employment
upon
the terms and conditions hereinafter set forth.
2. Term. The term of this Agreement (the "Initial Term") shall begin on
June 1, 1996 (the
"Commencement Date") and, subject to the provisions for termination and
renewal as hereinafter
provided, shall terminate on December 31, 1998. The Agreement shall have two
one year
renewal terms (the "Renewal Term(s)"). FMAC may extend the Agreement beyond
the Initial
Term if at least thirty (30) days preceding the expiration of the Initial Term
or the first Renewal
Term, FMAC notifies Kahn in writing that FMAC is renewing this Agreement.
Kahn's salary,
bonus and stock option for each of the Renewal Terms, if any, shall be as
mutually agreed to by
Kahn and FMAC at the time of such extension; provided, however, the terms of
such extension
shall be no less favorable than those for the Initial Term with the exception
of any stock option
grants.
3. Duties. Under the direction of the Board of Directors of FMAC (the
"Board"), Kahn is
engaged as CEO and President of FMAC and shall be responsible for the
operation of FMAC
and any subsidiary or subsidiaries of FMAC. If Kahn is re-elected a director
or other officer of
FMAC or re-elected or elected a director or officer of any subsidiary or
subsidiaries of FMAC,
Kahn shall serve in such capacities without further compensation, except for
reimbursement of
reasonable out-of-pocket expenses incurred as a result of such additional
position or positions.
Kahn shall perform such services and duties prescribed for such positions by
FMAC's By-laws
and as are otherwise incident to such positions and such other services and
duties not inconsistent
with such positions as may be specified from time to time by the Board.
Kahn's duties shall
include, but not be limited to, responsibility for the management of FMAC's
operations,
organization and strategic planning, marketing (including development of
ancillary products and
location of offices), credit policies, pricing and yields, and principal
communications with the
Board, all to be effected under the direction of the Board. Kahn shall
provide the Board with (i)
business plans and reports in such scope and detail as determined by the Board
from time to time
and (ii) such other information pertaining to the operations of FMAC as the
Board may
reasonably request.
4. Compensation. For all services rendered by Kahn under this Agreement,
FMAC shall
pay Kahn:
(a) an annual base salary ("Base Compensation"), following the Commencement
Date,
payable in equal semi-monthly installments (prorated for partial periods),
effective on June 1,
1996, in the following annual amounts:
7 months ending 12/31/96 $250,000
12 months ending 12/31/97 $275,000
12 months ending 12/31/98 $302,500
(b) In addition to the Base Compensation, Kahn shall receive from FMAC, on or
before
April 1, 1997, 1998 and 1999, an incentive compensation bonus (the "Bonus") of
up to 100% of
his Base Compensation in effect on the preceding December 31. The Bonus, if
any, shall be
determined based on the achievement by FMAC and Kahn of certain specific
strategic plans and
goals (the "Strategic Goals") during the preceding calendar year (the
"Measurement Period") as
shall be determined by the Board following its consideration of
recommendations by Kahn. For
the Measurement Period ending December 31, 1996, the Strategic Goals are
attached to this
Agreement as Exhibit A. For each subsequent Measurement Period the Strategic
Goals shall be
established as aforesaid no later than April 30th in each such Measurement
Period. On or before
March 31st following each Measurement Period, the Compensation Committee of
the Board
shall review the Strategic Goals for the prior Measurement Period in light of
FMAC's actual
performance during such Measurement Period and submit its recommendation to
the full Board
as to the percentage of Base Compensation to be paid to Kahn as a cash bonus,
if any, for such
prior Measurement Period. Payment of any bonus so determined by the Board
will be paid on or
before April 1st.
(c) In addition to the Base Compensation and Bonus, FMAC shall grant Kahn an
option to
purchase 100,000 shares of the common stock of FMAC on each of June 3, 1996,
December 31,
1996 and December 31, 1997, provided Kahn is employed by FMAC on such dates,
at 100% of
the fair market value of FMAC common stock at the close of trading of the
common stock at
each grant date pursuant to the terms and conditions, including the schedule
of vesting and
termination, set forth in the Stock Option Agreement attached as Exhibit B
hereto.
5. Expenses; Auto Allowance; Country Club Membership. Upon Kahn's
presentation of an
itemized accounting and the submission of supporting vouchers, FMAC shall
promptly
reimburse Kahn for all reasonable and necessary expenses incurred by him in
connection with
the discharge of his duties, including the management of the business of FMAC
and any
subsidiaries. During the term of this Agreement, FMAC shall provide Kahn with
an automobile
allowance of $800 per month. In addition, upon being advised by Kahn that he
has joined a
country club and upon submission of supporting documentation, FMAC will
reimburse Kahn for
up to $55,000 of the initiation expenses of such membership.
6. Benefits: Vacation. Kahn shall be offered inclusion in all employee
benefit plans
provided to FMAC employees ("Benefits") with respect to which he qualifies.
Notwithstanding
the foregoing, Kahn shall be entitled to four (4) weeks vacation each year,
with the right to carry
over two (2) weeks of unused vacation to the following year.
7. Non-Renewal. In the event that on or before 30 days preceding expiration
of the Initial
Term FMAC does not offer to renew this Agreement for at least one Renewal Term
(except in
the case where Kahn's employment with FMAC has been terminated for any reason
on or prior to
such renewal), on terms no less favorable than those for the Initial Term,
excluding any stock
option grants, this Agreement will terminate on the last day of the Initial
Term and FMAC shall
pay Kahn a termination payment equal to the amount of his Base Compensation in
effect on the
last day of the Initial Term payable in twelve (12) equal monthly
installments. In the event of
such failure to renew by FMAC, Kahn shall also be entitled to any Bonus earned
to the date of
termination which shall be due and payable in accordance with the terms of
paragraph 4(b)
hereof; which obligation shall survive the termination of this Agreement. In
addition, FMAC
shall continue to provide the Benefits to Kahn until the earlier of (i) the
date which is twelve (12)
months after the expiration of the Initial Term, or (ii) the date Kahn becomes
re-employed.
8. Extent of Service. Kahn shall devote his best efforts, attention and
energies to the
business of FMAC and any subsidiary or subsidiaries, and shall not, without
the prior approval of
the Board pursuant to a duly adopted resolution, directly or indirectly engage
in any other
business activity which materially interferes with Kahn's performance of his
duties hereunder.
This shall not be construed as preventing Kahn from investing his assets in
such form or manner
as will not require substantial time on the part of Kahn in the affairs of the
entities in which such
investments are made, will not detract from the operation of FMAC and are not
reasonably
expected to cause conflicts of interest to arise.
9. Disclosure of Information.
(a) Kahn recognizes and acknowledges that FMAC's customers, arrangements with
automobile dealers and other vendors, business methods, forms and proprietary
data, as they may
exist from time to time, are valuable, special and unique assets of FMAC's
business. Kahn will
not, during or after the term of his employment, disclose said information or
any part thereof to
any person, firm, corporation, association or other entity unaffiliated with
FMAC for any reason
or purpose whatsoever except to the extent that (i) such disclosure or use is
directly related to and
required for the performance of Kahn's duties pursuant hereto, (ii) such
disclosure is required by
law or legal process, (iii) such information becomes generally known to the
public at large (other
than through Kahn's breach of this Agreement) or (iv) such disclosure is
directly necessary in
connection with any legal action or proceeding initiated by or against Kahn.
In the event that
Kahn is subject to legal process as described in (ii) or (iv) above, Kahn
shall give FMAC notice
thereof and cooperate with FMAC in assuring confidential treatment of the
information.
(b) In the event of a breach or threatened breach by Kahn of the provisions
of this paragraph,
FMAC shall be entitled to an injunction restraining Kahn from disclosing, in
whole or in part, the
proprietary information or from rendering any services to any unaffiliated
person, firm,
corporation, association or other entity to whom such proprietary information,
in whole or in
part, has been disclosed or is threatened to be disclosed. Nothing herein
shall be construed as
prohibiting FMAC from pursuing any other remedies available to it for such
breach or threatened
breach, including, but not limited to, the termination of this Agreement for
Cause and the
recovery of damages.
10. Termination. Kahn's employment hereunder may be terminated under the
following
circumstances:
(a) Disability. If Kahn is unable to perform his duties hereunder by reason
of illness or
incapacity for a period of not more than 180 days in any twelve (12)
consecutive months, he shall
be entitled to his compensation (including Bonus and Benefits) during the
period of such illness
or incapacity. In the event that such illness or incapacity exceeds 180 days
in any twelve (12)
consecutive months in duration, FMAC may terminate Kahn's employment under
this Agreement
and all obligations of FMAC hereunder, other than as provided in paragraph
11(d), shall cease
upon termination. Kahn shall be considered to be disabled (a "Disability") if
in the reasonable
judgment of the Board, Kahn becomes unable to satisfactorily perform his
duties and
responsibilities hereunder during the term hereof because of mental or
physical disability for a
period that exceeds 180 days in any twelve (12) consecutive months;
(b) Death. Kahn's employment shall terminate in the event of Kahn's death
and all
obligations of FMAC hereunder, other than as provided in paragraph 11(c),
shall cease upon
termination;
(c) Cause. FMAC shall have the right to terminate Kahn's employment for
"Cause", as
herein defined, and such termination shall not constitute a breach of this
Agreement by FMAC.
As used herein, any one or more of the following acts by Kahn shall constitute
Cause: (i) willful
misconduct or gross negligence in connection with the discharge of his duties
hereunder; (ii)
conviction of a felony, or if Kahn is convicted of a crime involving moral
turpitude; (iii) willful
or intentional disregard in material respects of the lawful and reasonable
directions of the Board;
and (iv) failure to render services in accordance with paragraph 8 hereof.
Termination of Kahn's
employment because of death or Disability shall not be considered termination
for "Cause";
(d) Good Reason. Kahn may terminate his employment for "Good Reason." As
used in this
paragraph 10(d), the term "FMAC" shall also refer to any successor entity of
FMAC. For
purposes of this Agreement, Good Reason shall mean the occurrence of any of
the following
events or conditions:
(i) Kahn is no longer serving as the chief or principal executive officer
of FMAC charged
with and having the ultimate responsibility for the direction and supervision
of all of FMAC's
business and operations (the position of "President" under FMAC's current
Bylaws), or the
assignment to Kahn of any duties or responsibilities which are inconsistent
with the foregoing
described position (which assignment is not rescinded after FMAC receives
written notice from
Kahn providing a reasonable description of such inconsistency);
(ii) after a Change in Control (as hereinafter defined in paragraph 10(e)),
FMAC's requiring
Kahn to be based at any place outside a 20-mile radius from the principal
location from which
Kahn served as an employee of FMAC immediately prior to the Change in Control,
except for
reasonably required travel on FMAC's business which is not materially greater
than such travel
requirements prior to the Change in Control;
(iii) after a Change in Control, the inability of FMAC to provide Kahn with
compensation and
benefits substantially comparable, in the aggregate, to those provided for
under the employee
benefit plans, programs and practices in effect immediately prior to the
Change in Control;
(iv) after a Change in Control, the insolvency or the filing of a petition
for bankruptcy of
FMAC which petition is consented to or acquiesced in by FMAC or shall remain
for 90 days
undismissed; or
(v) any breach by FMAC of any material provision of this Agreement which
breach is not
cured within 30 days of FMAC's receipt of written notice thereof from Kahn.
(e) Change in Control. For purposes of this Agreement, a "Change in Control"
shall mean
the occurrence of the following events:
(i) the acquisition or holding by any person, entity or "group" within the
meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the "1934
Act") (other than
by FMAC or any of its subsidiaries or any employee benefit plan of FMAC or its
subsidiaries) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
1934 Act) of
20% or more of either the then-outstanding common stock or the combined voting
power of
FMAC's then-outstanding voting securities entitled to vote generally in the
election of directors
("Voting Power"); except that no such person, entity or group shall be deemed
to own
beneficially (A) any securities held by FMAC or a subsidiary or any employee
benefit plan (or
any related trust) of FMAC or a subsidiary, (B) any securities acquired
pursuant to a benefit plan
of FMAC or a subsidiary, (C) any securities issuable pursuant to any option,
warrant or right
owned by such person, entity or group as of the close of business on the
business day
immediately preceding September 30, 1994 (the "IPO Date"), (D) any security
that would
otherwise be beneficially owned by such person, entity or group as of the
close of business on the
business day immediately preceding the IPO Date and (E) any securities issued
in connection
with a stock split, stock dividend or similar recapitalization or
reorganization with respect to
shares covered by the foregoing exceptions; provided, however, that no Change
of Control shall
be deemed to have occurred solely by reason of any such acquisition (x) by a
corporation with
respect to which, after such acquisition, more than 60% of both the
then-outstanding common
shares of such corporation and the Voting Power of such corporation are
then-beneficially
owned, directly or indirectly, by the persons who were the beneficial owners
of the common
stock and voting securities of FMAC immediately before such acquisition in
substantially the
same proportions as their respective ownership, immediately before such
acquisition, of the then-outstanding common stock or the Voting Power of FMAC,
as the case may be; or (y) solely in
connection with the exercise of limited stock appreciation rights pursuant to
Section 9(e) of
FMAC's 1994 Equity Incentive Plan, pursuant to a tender offer unless at least
a majority of the
outstanding securities subject to the tender offer are tendered by persons who
are not Section 16
Persons as defined in such Plan and not withdrawn from such tender offer; or
(ii) approval by the stockholders of FMAC of (A) a merger, reorganization or
consolidation with
respect to which persons who were the respective beneficial owners of the
common stock and
Voting Power of FMAC immediately before such merger, reorganization or
consolidation do not,
immediately thereafter, beneficially own, directly or indirectly, more than
60% of, respectively,
the then-outstanding common shares and the Voting Power of the corporation
resulting from
such merger, reorganization or consolidation, (B) a liquidation or dissolution
of FMAC or (C)
the sale or other disposition of all or substantially all of the assets of
FMAC, provided, however,
that for purposes of this paragraph the votes of all Section 16 Persons (for
purposes of the 1934
Act) shall be disregarded in determining whether stockholder approval has been
obtained.
Notwithstanding the foregoing, a Change of Control shall be deemed not to have
occurred with
respect to any Section 16 Person if such Section 16 Person is, by agreement
(written or
otherwise), a participant on such Section 16 Person's own behalf in a
transaction which causes
the Change of Control to occur.
(f) Notice of Termination. Any purported termination of Kahn's
employment
hereunder by FMAC for any reason (other than due to Kahn's death but
including by reason of
Kahn's Disability) or by Kahn for Good Reason shall be communicated by a
written Notice of
Termination to the other party specifying the Termination Date defined
hereafter. For purposes
of this Agreement, a "Notice of Termination" shall mean a notice which
indicates the specific
termination provision in this Agreement relied upon as a basis for
termination. For purposes of
this Agreement, no such purported termination of employment shall be effective
without such
Notice of Termination.
(g) Termination Date. "Termination Date" shall mean, in the case of Kahn's
death, his date
of death, or in all other cases, the date specified in the Notice of
Termination; provided, however,
that if Kahn terminates his employment for Good Reason, the date specified in
the Notice of
Termination shall not be less than 30 days nor more than 60 days from the date
the Notice of
Termination is given to FMAC and if FMAC terminates Kahn's employment other
than for
Cause, the date specified in the Notice of Termination shall be not less than
30 days from the
date the Notice of Termination is given to Kahn.
11. Compensation Upon Termination. Upon termination of Kahn's employment
during the
term of this Agreement, Kahn shall be entitled to the following benefits:
(a) For Cause or Voluntary Termination. If Kahn's employment is terminated
by FMAC for
Cause or by Kahn (other than for Good Reason or Kahn's death or Disability),
FMAC shall pay
to Kahn all amounts earned or accrued hereunder through the Termination Date
but not paid as of
the Termination Date, including (i) Base Compensation, (ii) reimbursement (in
accordance with
the terms of this Agreement) for any and all monies advanced or expenses
incurred in connection
with Kahn's employment for reasonable and necessary expenses incurred by Kahn
on behalf of
FMAC for the period ending on the Termination Date, (iii) accrued but unpaid
vacation pay, and
(iv) any previously awarded and vested, but unpaid, Bonus or other incentive
compensation
(collectively, "Accrued Compensation"). Kahn's entitlement to any other
Benefits shall be
determined in accordance with FMAC's employee benefit plans and other
applicable programs
and practices then in effect and all stock options previously granted but not
vested shall be
forfeited.
(b) Involuntary or for Good Reason. If Kahn's employment is terminated (i)
by FMAC for
any reason other than for Cause prior to expiration of this Agreement pursuant
to its terms, (ii) by
death or Disability, or (iii) by Kahn for Good Reason, FMAC shall pay to Kahn
all Accrued
Compensation plus any Bonus or portion thereof which would have been earned as
a result of the
Strategic Goals relating thereto having been achieved as of the Termination
Date ("Earned
Bonus") and, to the extent not covered by the foregoing, any Accrued Bonus
(as hereinafter
defined). The term "Accrued Bonus" shall mean the amount of the Bonus which
would have
been payable to Kahn pursuant to paragraph 4(b) hereof in respect of a
Measurement Period in
which the Termination Date occurs and calculated as if Kahn were employed by
FMAC as of the
end of such Measurement Period (but, to the extent the Bonus is contingent on
the achievement
of Strategic Goals, based on whether such Strategic Goals were actually
achieved) multiplied by
a fraction, the numerator of which shall be the number of days in such year
which have elapsed
prior to the Termination Date and the denominator of which shall be the number
of days in such
year. In addition, Kahn shall receive each month for a period of twelve (12)
months after the
Termination Date (i) one-twelfth of the then current amount of Kahn's Base
Compensation, and
(ii) the Benefits which Kahn was entitled to receive as of the Termination
Date, with Kahn's
entitlement to any of the Benefits to be determined in accordance with FMAC's
employee benefit
plans and other programs and practices then in effect. Finally, Kahn shall be
deemed to be fully
vested as to all of FMAC's contributions on his behalf to FMAC's 401(k) Plan,
if then in effect
and to the previously granted options described in paragraph 4(c) hereof.
(c) Death. If Kahn's employment by FMAC is terminated by reason of Kahn's
death, Kahn's
estate shall receive all of the monies and Benefits provided in paragraph
11(b), plus any death
benefits provided under the Benefits specified in paragraph 6 hereof.
(d) Disability. If Kahn's employment by FMAC is terminated by FMAC by reason
of Kahn's
Disability, Kahn shall be entitled to receive or continue to receive, as the
case may be, all of the
monies and Benefits provided in paragraph 11(b), plus any disability benefits
provided under the
Benefits specified in paragraph 6 hereof.
(e) Continuation of Benefits. The continuation of any life insurance,
medical, dental,
hospitalization and similar Benefits pursuant to this paragraph 11 shall be in
satisfaction of the
Company's obligations under Section 4980B of the Internal Revenue Code of
1986, or any
similar state law requiring continuation of such insurance benefits, with
respect to the period of
time during which such insurance or benefits are continued hereunder. In the
event that it is not
possible to continue such health and life insurance benefits, FMAC shall
reimburse Kahn, or his
estate, for the cost of obtaining such coverage in accordance with COBRA and
other similar legal
requirements.
(f) Outplacement. In the event of termination other than for Cause,
voluntary termination
without Good Reason, death or Disability, FMAC shall provide outplacement
assistance for a
period of up to twelve months after the Date of Termination. Notwithstanding
the foregoing,
Kahn shall not be required to mitigate the amount or any payment provided for
in this Agreement
by seeking other employment and no such payment shall be offset or reduced by
the amount of
any compensation or benefits provided to Kahn in any subsequent employment.
12. Restrictive Covenant
(a) For a period of two (2) years after the termination of this Agreement or
any renewal
thereof, Kahn shall not, within a 250 mile radius of any office of FMAC or its
affiliates, which
the parties hereby agree is the "market area" of the business of FMAC,
directly or indirectly own,
manage, operate, control, be employed by, participate in or be connected in
any manner with the
ownership, management, operation or control of any business similar with or in
competition to
the business conducted by or to be conducted by FMAC or any subsidiaries at
the time of the
termination of this Agreement without the prior approval of the Board pursuant
to a duly adopted
resolution, provided, however, the foregoing shall not prohibit Kahn from
owning not more than
5% of the outstanding common stock of any entity whose common stock is
publicly traded on a
national securities exchange or on the Nasdaq Stock Market. This paragraph
shall be deemed
null and void and not binding upon Kahn in the event that any one of the
following conditions
occur: (i) FMAC does not offer to renew this Agreement for at least one
Renewal Term; (ii)
FMAC sells all or substantially all of it assets other than in the ordinary
course of business; or
(iii) FMAC makes an assignment for the benefit of creditors, is adjudicated a
bankrupt, has a
receiver appointed for its property or voluntarily ceases to conduct business,
which condition
remains in effect for at least 60 days.
(b) If at any time Kahn ceases to be an employee of FMAC, Kahn agrees that he
will not, for
a two (2) year period, recruit, solicit, offer employment or hire any employee
of FMAC or its
affiliates in any business similar to the type of business conducted by FMAC
or any of its
affiliates without the prior approval of the Board pursuant to a duly adopted
resolution. This
paragraph shall be deemed null and void and not binding upon Kahn in the event
that any one of
the conditions specified in paragraph 12(a)(ii) or (iii) occur.
(c) The parties agree that damages for a breach of the foregoing covenants
would be difficult
to ascertain and perhaps speculative and accordingly agree that injunctive or
other equitable
remedies may be granted to enforce said covenants.
13. Notices. Any notice required or permitted to be given under this
Agreement shall be
sufficient if in writing, and personally delivered or if sent by certified
mail to his residence in the
case of Kahn, (with a copy to Law Offices of Burke, Warren & MacKay, 22nd
Floor, One IBM
Plaza, Chicago, Illinois 60611, Attention: Christopher R. Manning, Esq.) or to
its principal office
in the case of FMAC, Attention: General Counsel, or to such other address or
to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party.
14. Waiver of Breach. The waiver by either party of a breach of any
provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent
breach or a waiver of any other provision of this Agreement by the waiving
party.
15. Assignment. The rights and obligations of Kahn under this Agreement
shall inure to the
benefit of and shall be binding upon the successors and assigns of FMAC;
however, no
assignment of rights, powers or benefits by Kahn shall be binding upon FMAC
without the
consent of the Board.
16. Subsidiary Entities. Any business entity with respect to which FMAC owns
50% or more
of the voting stock shall be deemed to be a "subsidiary" for purposes of this
Agreement.
17. Separability. Whenever possible, each provision of this Agreement will
be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder
of such provision or the remaining provisions of this Agreement.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with
the laws of the State of Illinois.
19. Costs of this Agreement. FMAC will bear the expenses, including
reasonable counsel
fees, incurred by Kahn in the preparation and negotiation of this Agreement in
an amount not to
exceed $ 3,000.
20. Authority. The execution and delivery of this Agreement has been duly
authorized by the
Board. Further, FMAC represents and warrants to Kahn, upon which Kahn relies,
that the
Agreement has been executed as so authorized on behalf of FMAC and is fully
binding and
effective on FMAC.
21. Legal Proceedings. If, at any time during the term of this Agreement (or
thereafter),
either FMAC of Kahn institutes any action or proceeding or asserts any
counterclaim against the
other relating to the provisions of this Agreement or any default hereunder,
the unsuccessful
party in such action or proceeding agrees to reimburse the successful party
for the reasonable
expense of attorneys fees, costs, expenses and disbursements incurred by the
successful party
with respect to such action before, during and after trial and on appeal.
Kahn waives his right to
a trial by jury in any action or proceeding relating to this Agreement.
22. Entire Agreement. This Agreement contains the entire Agreement of the
parties. It may
not be changed orally but only by an agreement in writing signed by the party
against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above
written.
(Corporate Seal) FIRST MERCHANTS ACCEPTANCE
ATTEST: CORPORATION
S/Richard R. Vogelman S/Richard Uhl
_____________________________ By:________________________________
A Member of its Compensation Committee
S/Mitchell C. Kahn
___________________________________
MITCHELL C. KAHN
Individually
EXHIBIT A
STRATEGIC GOALS
FOR
MEASUREMENT PERIOD
ENDING
DECEMBER 31, 1996
A. FINANCIAL
1. INCREASE NET REVENUES [CONFIDENTIAL PORTION OMITTED] OVER CY1995.
2. INCREASE NET INCOME ($) [CONFIDENTIAL PORTION OMITTED] OVER CY 1995.
3. EPS GROWTH OF [CONFIDENTIAL PORTION OMITTED] OVER CY 1995.
4. ORIGINATIONS OF [CONFIDENTIAL PORTION OMITTED] MILLION.
5. CHARGE OFFS LESS THAN [CONFIDENTIAL PORTION OMITTED].
B. OPERATIONS
1. Use our national sales force to expand FMAC's presents into smaller
metropolitan markets without establishing a local "bricks and mortar"
presence.
2. Open National Service Center in Dallas (scheduled for 6/15/96) serve
needs of used car mega stores like Carmax and multi-state mega dealer
groups. [CONFIDENTIAL PORTION OMITTED].
3. Consolidate the following offices:
a. St. Petersburg (into Tampa).
b. Newport News (into Virginia Beach).
c. Roanoke (into Richmond).
d. Dallas (into National Service Center).
4. Develop "A-/B+" financing program to expand our level of dealer service
and be positioned as a full service lender to franchise dealers.
Estimate our "fresh start" financing program. [CONFIDENTIAL PORTION
OMITTED].
[CONFIDENTIAL PORTION OMITTED]
C. TECHNOLOGY
[CONFIDENTIAL PORTION OMITTED]
D. SALES/MARKETING
1. Continue building national sales force.
[CONFIDENTIAL PORTION OMITTED]
E. ACCOUNT SERVICES
1. Install predictive dialers in Nashville and Denver Account
Service Centers.
2. Close Charlotte and Orlando Account Service Centers.
3. [CONFIDENTIAL PORTION OMITTED]
1997 INITIATIVES
[CONFIDENTIAL PORTION OMITTED]
EXHIBIT B
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is made and entered into as of
this 1st
day of June, 1996 (the "Effective Date") by and between First Merchants
Acceptance
Corporation, a Delaware corporation with its principal offices at 570 Lake
Cook Road, Suite 126,
Deerfield, Illinois 60015 (the "Corporation" or "FMAC"), and Mitchell C. Kahn,
residing at 153
Plum Tree Road, Deerfield, Illinois 60015 ("Employee").
Now, therefore, in consideration of the premises, it is hereby agreed by and
between the parties
as follows:
1. Grant of Option. Pursuant to the terms of that certain Employment
Agreement between
FMAC and Employee dated as of June 1, 1996 (the "Employment Agreement") the
Corporation
hereby grants to Employee the right, privilege, and option (the "Option") to
purchase shares of
the Company's voting common stock, $0.01 par value per share (the "Common
Stock"), pursuant
to the terms hereof in the manner and subject to the conditions hereinafter
provided (such shares
of Common Stock hereinafter referred to as the "Option Shares"), as follows:
Date of Grant Number of Shares
June 3, 1996 100,000
December 31, 1996 100,000
December 31, 1997 100,000
It is a condition to each stock option grant that Employee be employed on the
applicable Date of
Grant. Each of the above grants of 100,000 Option Shares is referred to
herein as an "Option
Grant". The purchase price for each Option Share shall be the "Fair Market
Value" of the
Common Stock as of the close of trading of the Common Stock as of the date of
grant.
For purposes of this Agreement, the term "Fair Market Value" shall mean the
closing price of the
Common Stock as reported on NASDAQ, or such other exchange as the Common Stock
may be
traded on in lieu of NASDAQ, on the date of grant or, if the date of grant is
not a trading day, the
last day preceding such date of grant on which a closing price was quoted (the
"Purchase Price").
2. Vesting. The 100,000 Option Shares contained in each Option Grant shall
become vested
and exercisable (the "Vested Shares") in accordance with the following
schedule: as to 20,000
Option Shares on the December 31 next following the date of grant, as to
30,000 Option Shares
on the second December 31 following the date of grant and as to the remaining
50,000 Option
Shares on the third December 31 following the date of grant. Each such
December 31 is herein
referred to as a "Vesting Date".
3. Time of Exercise. Subject to Section 2, Employee shall be entitled to
exercise the Option
with respect to the Vested Shares during the period commencing on the
applicable Date of Grant
and ending ten (10) years after such applicable Date of Grant.
4. Method and Conditions of Exercise of the Options.
(a) The Options shall be exercised by delivery by the Employee to the
Corporation at its
principal office of written notice in the form annexed hereto as Schedule A
(the "Notice") of the
number of Vested Shares with respect to which an Option is then being
exercised accompanied
by payment in full of the aggregate Purchase Price of such Vested Shares.
Payment for Vested
Shares so purchased shall be made by certified check payable to the order of
the Corporation in
the amount of such Purchase Price or in such other manner as to which the
Employee and the
Corporation agree.
(b) If, prior to the exercise of an Option, the Option Shares subject to the
Option being
exercised have not been registered with the Securities and Exchange Commission
pursuant to the
Securities Act of 1933 (a "Registration"), then the Employee agrees to include
in the Notice
Employee's acknowledgment of the truth and accuracy of the following
representations and
acknowledgments: (i) the Option Shares then being acquired are being acquired
for investment
and not with a view to the resale or distribution thereof, and (ii) the
Employee shall not sell,
transfer, pledge, hypothecate or otherwise dispose of such Option Shares in
the absence of an
effective registration statement therefor, or an opinion of the Corporation's
counsel that such
registration is not required.
5. Transfer and Investment Presentation.
(a) The Option is not transferrable and shall not be subject to execution,
attachment or other
process.
(b) Any certificate(s) for Option Shares issued upon the exercise of this
Option and subject to
Section 4(b) hereof shall bear substantially the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH
ACT."
6. Adjustment in the Event of Reclassification or Consolidation. If, and to
the extent that,
the number of issued shares of Common Stock of the Corporation shall be
increased or reduced
by change in par value, split-up, reclassification, distribution of a dividend
payable in stock or
the like, the number of shares subject to the Options contemplated by this
Agreement and/or the
price per share of the Options shall be proportionately adjusted.
7. Termination of Options. In the event that Employee's employment with the
Corporation
is terminated for any reason other than Employee's death, Disability or Good
Reason (as those
terms are defined in the Employment Agreement, the Options herein granted
shall terminate with
respect to all Option Shares other than Vested Shares. In the event of a
termination of
Employee's employment as a result of Employee's death, Disability or for Good
Reason, all
Option Shares granted prior to such termination which have not as yet vested,
shall immediately
vest and shall become Vested Shares.
8. Notice. Any notice required or permitted pursuant to this Option shall
be in writing and
shall be personally delivered or sent by registered or certified mail to the
addresses set forth
above or to such addresses as may be given by notice to the other party
hereto. Notices sent by
registered or certified mail in the manner aforesaid shall be deemed given
upon dispatch.
9. Employment Rights. Employee shall receive no right to continued
employment with the
Corporation or to continue any other relationship with the Corporation nor
shall the right of such
Corporation to terminate Employee's employment or such other relationship at
any time be
interfered with in any way by reason of the grant, execution, delivery or
acceptance of this
Option.
10. Miscellaneous. This Agreement cannot be changed or terminated orally and
shall be
governed by and construed in accordance with the laws of the State of
Illinois. The paragraph
headings herein are intended for reference only and shall not affect the
interpretation hereof.
11. Binding Effect. This Agreement shall be binding and inure to the benefit
of the parties
hereto and their respective successors, assigns and legal representatives.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year first
above written.
FIRST MERCHANTS ACCEPTANCE CORPORATION
S/Mitchell C. Kahn S/Richard Uhl
___________________________ By:_________________________________________
Mitchell C. Kahn
Its:_________________________________________
SCHEDULE A
FORM OF NOTICE OF
EXERCISE OF OPTION
First Merchants Acceptance Corporation
570 Lake Cook Road, Suite 126
Deerfield, IL 60015
Gentlemen:
Delivered herewith is a certified check in the amount of $________________,
payable to the
order of First Merchants Acceptance Corporation (the "Company"), representing
the Purchase
Price for shares of Common Stock, par value $0.01, of the
Company, pursuant to a
certain Stock Option Agreement between the Company and the undersigned dated
June 1, 1996.
I represent that the Option Shares are being acquired by me for investment and
that I have no
present intention to transfer, sell or otherwise dispose of such shares,
except in compliance with
applicable securities law.
I also agree that I will not sell, transfer, pledge, hypothecate or otherwise
dispose of the Option
Shares in the absence of an effective Registration Statement therefor, or an
opinion of the
Company's counsel that such registration is not required.
My address of record is
and my Social
Security number is .
Very truly yours,
Receipt, together with the
payment referred to is
hereby acknowledged.
FIRST MERCHANTS ACCEPTANCE CORPORATION
By:
Date:
FIRST AMENDMENT TO FOURTH AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
This First Amendment to Fourth Amended and Restated Loan and Security
Agreement (this
"Amendment") is dated as of the 1st day of May, 1996 by and among First
Merchants
Acceptance Corporation ("Borrower"), LaSalle National Bank ("LaSalle"), NBD
Bank, ("NBD"),
Firstar Bank Milwaukee, N.A. ("Firstar"), Harris Trust and Savings Bank
("Harris"), The
Boatmen's National Bank of St. Louis ("Boatmen's"), First Bank, National
Association ("First"),
CoreStates Bank, N.A. ("CoreStates"), Natwest Bank N.A. ("NatWest"), and
Mellon Bank, N.A.
("Mellon") (LaSalle, NBD, Firstar, Harris, Boatmen's, First, CoreStates,
NatWest and Mellon are
hereinafter referred to individually as "Lender" and collectively as "Lenders"
and LaSalle in a
separate capacity as Agent for Lenders under the "Loan Agreement" (as
hereinafter defined) is
hereinafter referred to as "Agent").
R E C I T A L S
A. Borrower, Lenders and Agent are parties to a Fourth Amended and Restated
Loan and
Security Agreement dated as of February 28, 1996 (including all exhibits and
riders thereto and
as supplemented and amended prior hereto or hereafter, referred to herein as
the "Loan
Agreement").
B. Borrower desires to amend the Loan Agreement to provide for an additional
revolving
credit facility pursuant to which Lenders would make Revolving Loans in excess
of the Credit
Commitment up to an aggregate sum of $25,000,000 on a temporary basis and
certain other
modifications in the terms thereof.
C. Lenders are willing to consent to such amendments on the terms and
conditions contained
herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the
parties
contained herein and for other good and valuable consideration, the receipt of
which is hereby
acknowledged, Borrower, Agent and Lenders agree as follows:
Section 1. Recitals. The Recitals to this Amendment are hereby incorporated
herein in their
entirety by this reference thereto and deemed to be a part hereof.
Section 2. Amendments to Loan Agreement. Subject to the terms of this
Amendment, the Loan
Agreement is hereby amended as follows:
2.1 Section 1 of the Loan Agreement is hereby amended to add the following
new defined terms:
"Revolving Credit Facility" shall have the meaning provided in Section 2(a).
"SAF Commitment" shall mean as to each Lender, the amount of set forth
opposite its name on
the signature pages hereto under the heading "SAF Commitment".
"SAF Commitment Percentage" shall mean, as to any Lender, the percentage which
its SAF
Commitment bears to the SAF Credit Commitment.
"SAF Credit Commitment" shall have the meaning provided in Section 2(b).
"Special Advance Facility" shall have the meaning provided in Section 2(b).
"Special Advance Facility Termination Date" shall mean November 1, 1996.
"Special Advance Facility Notes" shall have the meaning provided in Section 8.
2.2 The definition of the term "Borrowing Base" set forth in Section 1 of the
Loan
Agreement is hereby amended by deleting the reference to the dollar figure
"$205,000,000"
where it appears therein and inserting in substitution therefor the dollar
figure "$230,000,000".
2.3 Section 2 of the Loan Agreement is hereby deleted in its entirety and the
following is
inserted in substitution therefor:
"Section 2. Revolving Credit Facility, Special Advance Facility.
(a) Subject to the terms and conditions of this Agreement and subsection (b)
hereof, each of the
Lenders severally and not jointly agrees to make a revolving credit facility
available to Borrower
consisting of loans and advances (individually each a "Revolving Loan" and
collectively the
"Revolving Loans") to Borrower from time to time until, but not including, the
Credit
Termination Date, as the Borrower may from time to time request, in the amount
of each
Lender's Commitment Percentage of the Revolving Loans requested by Borrower,
up to, but not
in excess of an aggregate sum of $205,000,000 ("Credit Commitment"), and, in
the case of each
Lender, up to but not exceeding each Lender's Commitment (the "Revolving
Credit Facility"),
provided, however, that Lenders shall not make or be required to make any
Revolving Loan if,
after giving effect thereto, the aggregate outstanding principal amount of all
Revolving Loans
would exceed the Borrowing Base. The Revolving Credit Facility will
terminate, and Lenders
will be relieved from their commitment to make Revolving Loans, on the
earliest to occur of the
following: (a) the Credit Termination Date; (b) an Event of Default (except
that the Revolving
Credit Facility may be reinstated at the sole and absolute discretion of the
Lenders upon the cure
of any Event of Default); or (c) upon the date specified in a written request
of the Borrower to the
Lenders given no less than 90 days prior to the Borrower's requested
termination date.
(b) Subject to the terms and conditions of this Agreement, commencing May 1,
1996, each of
the Lenders severally and not jointly agrees to make a special advance
facility available to
Borrower consisting of Revolving Loans to Borrower from time to time in excess
of the Credit
Commitment, until, but not including the Special Advance Facility Termination
Date, as the
Borrower may from time to time request, in the amount of each Lender's SAF
Commitment
Percentage of the Revolving Loans requested by Borrower, up to, but not in
excess of an
aggregate sum of $25,000,000 ("SAF Credit Commitment"), and, in the case of
each Lender, up
to but not exceeding each Lender's SAF Commitment (the "Special Advance
Facility");
provided, however, that Lenders shall not make or be required to make any
Revolving Loan if,
after giving effect thereto, the aggregate outstanding principal amount of all
Revolving Loans
would exceed the Borrowing Base. The Special Advance Facility shall
terminate, and Lenders
will be relieved from their Commitment to make Revolving Loans thereunder, on
the earliest to
occur of the following: (a) the Special Advance Facility Termination Date; or
(b) an Event of
Default (except that the Special Advance Facility may be reinstated at the
sole and absolute
discretion of Lenders upon the cure of any Event of Default). Each request
for a Revolving Loan
under the Special Advance Facility shall be deemed a request for a Prime Rate
Loan. Not less
than once during each thirty (30) consecutive day period following the initial
Revolving Loan
under the Special Advance Facility, Borrower shall repay in full all
outstanding Revolving Loans
under the Special Advance Facility.
Prior to the termination of Lenders' Commitments and SAF Commitments as herein
provided,
Borrower may from time to time borrow, prepay and reborrow amounts under
Revolving Loans
pursuant to the Lenders' Commitments and SAF Commitments and subject to and in
accordance
with the other terms, provisions, and conditions of this Agreement."
2.4 Sections 4(c) and 4(d) of the Loan Agreement are hereby amended by
inserting a comma
followed by the words "Special Advance Facility Note" after the word
"Agreement" where it
appears therein.
2.5 Section 8 of the Loan Agreement is hereby deleted in its entirety and the
following is
inserted in substitution therefor:
"8. Revolving Credit Notes, Special Advance Facility Notes, Repayment. The
Revolving Loans
under the Revolving Credit Facility shall be evidenced by Revolving Credit
Notes executed by
Borrower dated the date of this Agreement and substantially in the form of
Exhibit A attached
hereto and forming a part hereof ("Revolving Credit Notes"). The Revolving
Loans under the
Special Advance Facility shall be evidenced by Special Advance Facility Notes
executed by
Borrower dated as of May 1, 1996 and substantially in the form of Exhibit A-1
attached hereto
and forming a part hereof ("Special Advance Facility Notes"). Subject to the
provisions of this
Agreement, the Obligations shall be subject to principal repayments in whole
upon the Credit
Termination Date, in part to the extent that the unpaid amount of the
Obligations outstanding
exceeds the Borrowing Base, in part to the extent of all Revolving Loans
outstanding under the
Special Advance Facility upon the Special Advance Facility Termination Date,
and shall be
repaid in whole, upon demand of the Agent in accordance with Section 19 upon
the occurrence
of an Event of Default."
2.6 Section 17 of the Loan Agreement is hereby amended by adding the
following new
Subsection (o) thereto:
"(o) Mandatory Prepayment. Borrower shall utilize the proceeds of any
Permitted
Securitization Transaction or from the permitted issuance of any debt or
equity security received
subsequent to May 1, 1996, to repay in full the outstanding Revolving Loans
under the Special
Advance Facility."
2.7 Section 18(b) of the Loan Agreement is hereby amended by adding the words
"and the
Special Advance Facility Notes" after the words "Revolving Credit Notes" where
they appear
therein.
2.8 Section 18(l) of the Loan Agreement is hereby amended to delete the
dollar figure
"$2,000,000" where it appears therein and substitute therefor the dollar
figure "$5,000,000".
2.9 Section 19(a) of the Loan Agreement is hereby amended by adding a comma
followed by the
words "the Special Advance Facility Notes" after the words "Revolving Credit
Notes" where
they appear therein.
2.10 Section 25(a) and 25(b) of the Loan Agreement is hereby amended by
adding a comma
followed by the word "Special Advance Facility Notes" after the word
"Agreement" wherever it
appears in the first and second sentences of Section 25(a) and in the first
line of Section 25(b).
2.11 Section 25(c) of the Loan Agreement is hereby amended by adding the
words "or the SAF
Commitments" after the word "Commitments" wherever it appears in the first
full sentence
thereof.
2.12 Section 32 of the Loan Agreement is hereby amended by adding a comma
followed by the
words "Special Advance Facility Notes" after the words "Revolving Credit
Notes" wherever they
appear therein.
2.13 The Loan Agreement is hereby amended to add a new Exhibit A-1 thereto in
the form of
Exhibit A to this Amendment.
2.14 The Loan Agreement is hereby amended to add the following SAF
Commitments adjacent
to each Lender's name appearing on the signature pages thereto:
Lender SAF Commitment
LaSalle $3,658,536
NBD $3,048,781
Firstar $2,439,024
Harris $2,439,024
Boatmen's $1,829,268
First Bank $3,048,781
CoreStates $3,048,781
NatWest $3,048,781
Mellon $2,439,024
Section 3. Representation of the Warranties. To induce Lenders to amend the
Loan Agreement,
Borrower represents and warrants to Lenders that:
3.1 Compliance with Loan Agreement. On the date hereof, Borrower is in
compliance with
the terms and provisions of the Loan Agreement and no Event of Default
specified therein has
occurred.
3.2 Representations, Warranties and Covenants. On the date hereof, the
representations,
warranties and covenants set forth in the Loan Agreement are true and correct
with the same
effect as if such representations, warranties and covenants have been made on
the date hereof
except to the extent such representations, warranties and covenants expressly
relate to an earlier
date.
3.3 Authority of Borrower. Borrower has full power and authority to enter
into this
Amendment, which has been duly authorized by all proper and necessary
corporate action. No
consent or approval of any public authority or regulatory body or any other
party is required as a
condition to the validity or enforceability of this Amendment.
3.4 Amendment as Binding Agreement. This Amendment constitutes a valid and
legally
binding obligation of Borrower, fully enforceable against Borrower in
accordance with its terms.
Section 4. Conditions Precedent. The agreement by Lenders to amend the Loan
Agreement
pursuant to the terms of this Amendment is subject to the following conditions
precedent:
4.1 Evidence of Authority. Agent shall have received evidence of the
authorization of
Borrower to enter into this Amendment by its Board of Directors in form
acceptable to Agent.
4.2 Special Advance Facility Notes. Each Lender shall have received an
executed Special
Advance Facility Note in the form of Exhibit A hereto.
4.3 Fee. Agent shall have received a facility fee for the ratable benefit of
Lenders in the
amount of $35,000.
Section 5. General Provisions.
5.1 Except as amended by this Amendment, the terms and provisions of the loan
agreement
are in all other respects ratified and confirmed and remain in full force and
effect. In the event of
a conflict between the terms of the Loan Agreement and the terms of this
Amendment, the terms
of this Amendment shall be controlling.
5.2 After the effective date hereof, all references in the Loan Agreement and
in all related
agreements and documents to "Agreement", "hereof", or the like shall refer to
the Loan
Agreement as herein amended or modified.
5.3 This Amendment shall not constitute a waiver of any existing events of
default or any
other provisions of the Loan Agreement as amended hereby, except as expressly
set forth herein,
and shall not constitute a course of dealing with respect to any such events
of default or an
agreement to further consents, amendments or waivers under the Loan Agreement.
Agent and
Lenders expressly reserve their rights and remedies, none of which shall be
deemed to be waived
hereby.
5.4 Borrower hereby agrees to pay all reasonable out-of-pocket expenses
incurred by Agent
in connection with the preparation, negotiation and consummation of this
Amendment and all
other documents related thereto, including, without limitation, the fees and
expenses of Agent's
counsel.
5.5 This Amendment shall be construed in accordance with and governed by the
laws of the
State of Illinois and the obligations of Borrower under this Amendment are and
shall arise
absolutely unconditionally upon the execution and delivery of this Amendment.
This
Amendment may be executed in counterparts.
5.6 Capitalized terms used herein which are defined in the Loan Agreement,
shall unless
otherwise defined herein, have the meanings provided in the Loan Agreement.
IN WITNESS WHEREOF, the Borrower and Lenders have caused this Amendment to be
duly
executed as of the date first above written.
FIRST MERCHANTS ACCEPTANCE CORPORATION
By: S/KENT A. HAMMERSTROM
Title:
LASALLE NATIONAL BANK
By: S/DANIEL J. CLARKE, JR.
Title:
NBD BANK
By: S/Dennis J. Krakau
Title:
FIRSTSTAR BANK MILWAUKEE, N.A.
By: S/Michael S. Cameli
Title:
HARRIS TRUST AND SAVINGS BANK
By: S/Richard J. Melnick
Title:
FIRST BANK, NATIONAL ASSOCIATION
By: S/Andrew K. Dawson
Title:
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
By: S/Matthew J. Colgan
Title:
NATWEST BANK, N.A.
By: S/John T. Trainor
Title:
CORESTATES BANK, N.A.
By: S/Thomas E. Foley
Title:
MELLON BANK, N.A.
By:
Title:
EXHIBIT A
SPECIAL ADVANCE FACILITY NOTE
$ Chicago, Illinois
May 1, 1996
For Value received, the undersigned First Merchants Acceptance Corporation
("Borrower")
promises to pay to the order of ("Lender"), at such place
as Lender may from time
to time designate in writing, on November 1, 1996, the principal sum of
or, if less, the aggregate unpaid principal amount of all advances made by
Lender as, or relating
to, the Revolving Loans under the Special Advance Facility in accordance with
the provisions of
a Fourth Amended and Restated Loan and Security Agreement of even date
herewith, among
Borrower, Lender and certain other parties, as amended and supplemented from
time to time
("Loan Agreement"). Capitalized terms used herein and not otherwise defined
shall have the
meanings ascribed to them in the Loan Agreement.
Except as hereinafter provided, Borrower's obligations and liabilities to
Lender under this Note
("Borrower's Liabilities") unpaid from time to time shall bear interest from
the date hereof until
paid at the applicable rate provided in Section 9 of the Loan Agreement.
Interest shall be
computed on the basis of actual days elapsed over a 360-day year and shall be
payable in arrears,
at the times provided in the Loan Agreement.
If any Borrower's Liabilities are not paid when due and payable or declared
due and payable,
interest, in lieu of the interest hereinabove provided, shall accrue on
Borrower's Liabilities
immediately due and payable by Borrower to Lender without notice by Lender to
or demand by
Lender of Borrower.
Borrower warrants and represents to Lender that Borrower shall use the
proceeds represented by
this Note solely for proper business purposes, and consistently with all
applicable laws and
statutes. Borrower further warrants and represents to Lender and covenants
with Lender that
Borrower is not in the business of extending credit for the purpose of
purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the
Federal Reserve System), and no proceeds represented by this Note will be used
to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any
margin stock.
This note is a Special Advance Facility Note referred to in the Loan Agreement
to which
reference is made for a statement of the terms and conditions under which
prepayments on this
Note may and shall be made, for a description of the circumstances under which
this Note may
be declared due and payable, for a description of the Collateral securing
payment of this Note
and for a description of the rights and remedies of the Lender.
The occurrence of an Event of Default under the Loan Agreement, or Borrower's
failure to pay
any of Borrower's Liabilities when due and payable or declared due and payable
shall constitute
a default by Borrower ("Event of Default") under this Note.
Upon an Event of Default hereunder, without notice by Lender to or demand by
Lender of
Borrower, all of Borrower's Liabilities shall be due and payable, forthwith.
The acceptance by
Lender of any partial payment made hereunder after the time when any
obligation under this
Note becomes due and payable will not establish a custom, or waive any rights
of Lender to
enforce prompt payment hereof. Borrower and every endorser hereof waive
presentment,
demand and protest and notice of presentment, protest, default, non-payment,
maturity, release,
compromise, settlement, extension or renewal of this Note.
This Note and Borrower's Liabilities hereunder are secured by all security
interests, liens and
encumbrances heretofore, now or hereafter granted to Agent by Borrower.
Regardless of the
adequacy of any collateral securing Borrower's Liabilities hereunder, any
deposits (other than
segregated deposits designated for the payment of taxes or other designated
trust funds) or other
sums at any time credited by or payable or due from Lender to Borrower, or any
monies, cash,
cash equivalents, securities, instruments, documents or other assets of
Borrower in possession or
control of Lender or its bailee for any purpose may at any time be reduced to
cash and applied by
Lender to or setoff by Lender against Borrower's Liabilities hereunder.
If at any time or times after the date of this Note, Lender: (a) employs
counsel for advise or other
representation (I) to represent Lender in any litigation, contest, dispute,
suit, proceeding or to
commence, defend or intervene or to take any other action in or with respect
to any litigation,
contest, dispute, suit or proceeding (whether instituted by Lender, Borrower
or any other person)
in any way or respect relating to this Note, or any collateral securing
Borrower's Liabilities
hereunder, or (ii) to enforce any rights of Lender against Borrower; (b) takes
any action to
protect, collect, sell. Liquidate or otherwise dispose of any collateral
securing Borrower's
Liabilities hereunder; and/or attempts to or enforces any of Lender's rights
and remedies against
Borrower or any other party primarily or otherwise liable with respect to
Borrower's Liabilities,
the reasonable costs and expenses incurred by Lender in any manner or way with
respect to the
foregoing shall be part of Borrower's Liabilities, payable by Borrower to
Lender on demand.
Without limiting the generality of the foregoing, such expenses; (ii)
accountants' fees, costs and
expenses; (iii) court costs and expenses (iv) court reporter fees, costs and
expenses; (v) long
distance telephone charges, (vi) telegram charges; and (vii) expenses for
travel, lodging and food.
If any provision of this Note or the application thereof to any party or
circumstance is held
invalid or unenforceable, the remainder of this Note and the application of
such provision to
other parties or circumstances will not be affected thereby and the provisions
of this Note shall
be severable in any such instance.
This Note is submitted by Borrower to Lender at Lender's principal place of
business and shall
be deemed to have been made thereat. This Note shall be governed and
controlled by the laws of
the State of Illinois as to interpretation, enforcement, validity,
construction, effect, choice of law
and in all other respects.
To induce Lender to accept this Note, Borrower, irrevocably, agrees that,
subject to Lender's sole
and absolute election, all actions or proceedings in any way, manner or
respect, arising out of or
from or related to this Note, shall be litigated in courts having situs within
the County of Cook,
State of Illinois. Borrower hereby consents and submits to the jurisdiction
of any local, state or
federal court located within said county and state. Borrower hereby
irrevocably appoints and
designates Prentice-Hall Corporation System, Inc. whose address is 33 North
LaSalle Street,
Chicago, Illinois 60602, or any other party whom Lender may from hereafter
designate (after
giving Borrower Five (5) days written notice thereof), as Borrower's true and
lawful attorney-in-fact and duly authorized agent for service of legal process
and agrees that service of such process
upon Borrower. Such party, within five (5) days after receipt of any such
process, shall forward
the same by certified or registered mail, together with all papers affixed
thereto, to Borrower at
the address designated below. Borrower hereby waives any right Borrower may
have to transfer
or change the venue of any litigation brought against Borrower by Lender in
accordance with this
paragraph.
Borrower and Lender each waive any right to trial by jury in any action or
proceeding relating to
this Note.
In witness whereof, Borrower has caused this Note to be duly executed as of
the 1st day of May,
1996.
First Merchants Acceptance Corporation
By:_________________________________
Title:______________________________
570 Lake Cook Road, Suite 126
Deerfield, IL 60015
Attest:
By:_________________________________
Title:______________________________
[COMMENT1]1.Scope of Services, Description of Exhibits.
[COMMENT2]1.1Services
[COMMENT3]1.2Exhibits
[COMMENT4]2.Term.
[COMMENT5]3.Responsibilities of the Parties.
[COMMENT6]3.1Input Forms and Output Forms.
[COMMENT7]3.2Delivery.
[COMMENT8]3.3Equipment and Communication Costs.
[COMMENT9]3.4Client's Input Data.
[COMMENT10]3.5Maintaining Copies of Input.
[COMMENT11]3.6Compatibility of Non-ALLTEL Financial Software.
[COMMENT12]3.7Financial Management Equivalent Software
[COMMENT13]3.8Alternative Third-Party Software
[COMMENT14]3.9Audit.
[COMMENT15]3.10Days of Operation.
[COMMENT16]4.Time of Performance.
[COMMENT17]4.1Submission of Input.
[COMMENT18]4.2Acts of God and Equipment Malfunction.
[COMMENT19]4.3Special Requests.
[COMMENT20]4.4Client Provided Network and Software
[COMMENT21]4.5Correction of Processing Errors.
[COMMENT22]4.6Client Review of Reports.
[COMMENT23]5.Software.
[COMMENT24]5.1Additional Licensed Programs
[COMMENT25]5.2Software Warranty
[COMMENT26]5.3Third Party Software
[COMMENT27]6.Planning and Communication.
[COMMENT28]6.1Management Interface.
[COMMENT29]6.2User Interface.
[COMMENT30]6.3Annual Technology Review.
[COMMENT31]7.Education.
[COMMENT32]8.Mergers and Acquisitions.
[COMMENT33]9.Enhancements, Replacement Systems, New Subsystems, New Systems,
and
Modifications to ALLTEL Financial Batch and on-line Systems
[COMMENT34]9.1Announcement
[COMMENT35]9.2Installation of Enhancements and Replacement Systems
[COMMENT36]9.3Installation of New Subsystems and New Systems
[COMMENT37]9.4Modifications Requested by Client
[COMMENT38]9.5Client Knowledge of System Status.
[COMMENT39]9.6User Manuals
[COMMENT40]10.Regulatory Compliance.
[COMMENT41]11.Confidentiality.
[COMMENT42]11.1Confidentiality of Client Data.
[COMMENT43]11.2ALLTEL Financial Data.
[COMMENT44]11.3Inspection of Records.
[COMMENT45]11.4Confidential Agreement.
[COMMENT46]12.Return of Data.
[COMMENT47]12.1Program Ownership.
[COMMENT48]12.2Master and Transaction File Ownership.
[COMMENT49]12.3[CMSI CreditRevue System
[COMMENT50]13.Disaster Recovery and File Backup.
[COMMENT51]13.1Disaster Recovery.
[COMMENT52]13.2File Backup.
[COMMENT53]14.Miscellaneous Services.
[COMMENT54]14.2Repetitive Services.
[COMMENT55]14.3Price Adjustment.
[COMMENT56]15.Payment and Billing.
[COMMENT57]17.Termination.
[COMMENT58]17.1Right to Terminate.
[COMMENT59]17.2Method of Termination.
[COMMENT60]17.3Data, Systems and Programs.
[COMMENT61]18.No Interference with Contractual Relationship.
[COMMENT62]19.Assignment or Delegation of Duties.
[COMMENT63]20.Client and ALLTEL Financial Employees.
[COMMENT64]21.Notices.
[COMMENT65]22.Paragraph Titles.
[COMMENT66]23.Counterparts.
[COMMENT67]24.Increase for Taxes.
[COMMENT68]25.Standard Reports and Schedules.
[COMMENT69]26.Financial Statements.
[COMMENT70]27.Governing Law.
[COMMENT71]28.Insurance.
[COMMENT72]29.Entire Agreement, Warranty Disclaimers.
1241678.01 September 12, 1996
A-15
B-1
C-14
reexh.doc D-1
reexh.doc E-1
reexh.doc F-4
G-6
H -2
188166.1 September 12, 1996
