**Exhibit 10.34**

 

**AMENDED ANDRESTATED TRUST 3000 SERVICE AGREEMENT**

 

**SEIInvestments Company** (formerly SEI Corporation) (“SEIIC”), aPennsylvania corporation, currently having its principal place of business atOne Freedom Valley Drive, Oaks, Pennsylvania 19456 and **Investors Bank & Trust Company** (“Customer”),a Massachusetts corporation having its principal place of business at 200Clarendon Street, Boston, Massachusetts 02110, entered into a certain Trust3000 Service Agreement, dated the 1ST day of July, 1991 (as amendedto date, most recently on November 21, 2003, the “Original Agreement”),pursuant to which, among other things, SEIIC agreed to provide certain trustprocessing and reporting services for Customer and its customers through theTRUST 3000 System.

 

SEIIC previously assigned to SEI GlobalServices, Inc. (“SEI”) all of SEIIC’s rights and obligations under theOriginal Agreement (such assignment did not relieve SEIIC from any of suchobligations).

 

SEI and Customer (collectively the “Parties”,individually, a “Party”) now desire to amend and restate the Original Agreementin its entirety effective as of July 1, 2004 (the “Designated Date”).  However, notwithstanding such amendment andrestatement, the provisions of the Original Agreement shall continue to governthe respective rights and obligations of the SEIIC and Customer that arose oraccrued prior to the Designated Date; and the provisions of this Agreementshall govern the respective rights and obligations of the Parties that ariseand accrue from and after the Designated Date.

 

  NOWTHEREFORE, in consideration of the premises, and the covenants, representationsand warranties contained herein, and intending to be legally bound hereby, SEIand Customer agree as follows:

 

SECTION 1. SERVICES PROVIDED AND EQUIPMENT SPECIFICATION 

 

1.01. TRUST 3000 Service. Subject to the termsand conditions of this Agreement, SEI agrees to provide Customer and Customeragrees to purchase the use of the TRUST 3000 Service for its trust departmentand custody department accounts existing on the date hereof and for futuretrust department and custody department accounts to the extent permitted by Section 4.01.As used herein, TRUST 3000 Service shall mean the products and services offeredby SEI and purchased by Customer hereunder, for managing and processing trustaccounts of financial institutions, as specified in **Exhibit A** attached hereto and as described in the UserManuals for the functions specified on such Exhibit, some of which products andservices are currently provided through the operation of SEI’s TRUST 3000System.  The SEI Trust 3000 System meansthe proprietary computer systems and components utilized by SEI from time totime to provide certain of the SEI Trust 3000 Service hereunder.  SEI shall provide the TRUST 3000 Service inaccordance with the Performance Standards set forth

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

in **Exhibit B** except as otherwise provided in this Agreement.

 

If Customer requires applications orprocessing outside of the levels specified, SEI shall make reasonable effortsto provide such processing service upon agreement by SEI and Customer of theadditional fees due for such increased levels, such fees not to exceed SEI’sprevailing rates  for such services,which shall not exceed the fees generally charged by SEI to similarly situatedcustomers, determined by relative size (based on number of accounts on theTrust 3000 System) and usage of the Trust3000 Service.

 

It is understood and agreed that SEI shall have theright to engage other persons or entities to provide any portion of theTrust3000 Service.  Customer understandsand agrees that SEI has sole responsibility and liability, subject to thelimitations of liability set forth in this Agreement, for furnishing the Trust3000 Service, and agrees that Customer shall look solely to SEI for theprovision of the Trust 3000 Service; and that persons or entities providing anyof the Trust 3000 Service, whether as supplier agent or subcontractor, shallhave no liability to Customer for Trust3000 Service.

 

1.02. Equipment. Customer shall be responsiblefor obtaining and maintaining network-compatible terminal, print andtelecommunication equipment for use in conjunction with the TRUST 3000 Service.

 

1.03 License Grant to the Trust 3000 System.SEI hereby grants to Customer during the Term of this Agreement anon-exclusive, personal and limited license to use the Trust 3000 System solelyin connection with the accounts as contemplated by this Agreement.  Customer shall not sublicense, assign, lease,distribute, or otherwise transfer the Trust 3000 System or Customer’s right touse the Trust 3000 System to any other person or entity.

 

SECTION 2. TERM OF AGREEMENT

 

 2.01. BasicTerm.  The Basic Term of thisAgreement shall begin as of the Designated Date and shall conclude on December 31,2009.  Thereafter, the Agreement shallautomatically renew as provided in Section 2.02 of the Agreement.  As of the Designated Date, this Agreementamends and restates the Original Agreement in its entirety and supersedes theOriginal Agreement, in all respects, notwithstanding any provisions to thecontrary.

 

2.02. Renewal Term. This Agreement shallautomatically remain in full force and effect for a three (3) year RenewalTerm, and for three (3) year Renewal Terms thereafter, unless terminatedas provided in Section 2.03 of the Agreement.

 

2.03. Termination. Customer or SEI may elect toterminate this Agreement on the last day of the Basic Term or any Renewal Termby notifying the other Party hereto in writing, not less than one hundred andeighty (180) calendar days prior to the expiration date.

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

2.04. Early Termination.

 

(A) Early Termination During theBasic Term/Renewal Term – Notice and Buyout Amount to be Paid.  In the event Customer desires to terminatethis Agreement at any time during the Basic Term or any Renewal Term, Customermay terminate this Agreement provided:  (1) Customeris not in material breach of this Agreement at the time such notice oftermination is given; (2) Customer gives SEI no less than [/*/CONFIDENTIAL TREATMENT REQUESTED] calendar days prior written notice of suchtermination (such notice may be referred to as the “Termination Notice”); and (3) Customerpays the Buyout Amount defined below, at the time such Termination Notice isgiven.  In addition, Customer agrees topay all other amounts set forth in Section 9.01.2. The “Buyout Amount”means the dollar amount achieved through the calculations set forth in (1) through(5) below:

 

(1)          the Minimum Monthly TRUST 3000 Core Fee in effect at the timethe Termination Notice is given, plus

 

(2) all other monthlySubsystem fees in effect at the time the Termination Notice is given; the sumof (1) and (2) shall be multiplied by

 

(3) the number ofmonths remaining on the Basic Term or the Renewal Term, as applicable; theproduct of such multiplication shall be present value discounted (“PVD”) by theamount set forth in (4) below;

 

(4) the PVD shall equalthe time value of money for the period of time commencing when Customer paysthe Buyout Amount, continuing until the end of the Basic Term or Renewal Term,as applicable, (without taking into consideration any additional Renewal Termsof this Agreement), at an interest rate equal to the short term Fed Funds ratein effect, in the Wall Street Journal, on the date such Termination Notice isgiven.

 

(5) Finally, the amountdetermined under paragraph (4) shall be multiplied by the applicablepercentage (“Applicable Percentage”) as follows:

 

Ifthe date of the Termination Notice is prior to December 31, 2006, theApplicable Percentage shall be [/*/ CONFIDENTIAL TREATMENT REQUESTED];

 

Ifthe date of the Termination Notice is between January 1, 2007  and December 31, 2008, the ApplicablePercentage shall be [/*/ CONFIDENTIAL TREATMENT REQUESTED]; and

 

Ifthe date of the Termination Notice is after December 31, 2008 (includingduring any Renewal Term), the Applicable Percentage shall be [/*/ CONFIDENTIALTREATMENT REQUESTED].

 

Anexample of the calculation of the Buyout Amount is provided below:

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

Notwithstandinganything in this Agreement to the contrary, Customer may terminate certainSubsystems (as specifically identified in **Exhibit A**)without terminating the Agreement and without payment of any early terminationfee or Buyout Amount.

 

Paymentof the Buyout Amount, and the other amounts specified in Section 9.01.2,shall be SEI’s sole and exclusive remuneration in connection with Customer’sexercise of Customer’s termination of the Agreement under this Section 2.04.  The foregoing is not intended to limit anyrights or remedies that SEI may have for enforcement of Customer’s obligationshereunder.

 

(B) Payment of Buyout Amount if Customer Continues TRUST 3000System Retrieval. Notwithstanding anything contained to the contrary in Section (A) above,in the event Customer terminates this Agreement as provided in Section (A) above,but Customer desires to continue to use the TRUST 3000 System for retrievalpurposes for a period of time which is equal to, or less than, [/*/CONFIDENTIAL TREATMENT REQUESTED] from the effective date of termination,Customer may pay the Buyout Amount as calculated in Section (A) above,in monthly installments.  The monthlyinstallments will commence on the effective date of termination, and continuefor each month Customer uses the TRUST 3000 System for retrieval purposes. Eachinstallment shall equal the Buyout Amount divided by the number of months whichCustomer desires to continue to use the TRUST 3000 System for retrieval. In noevent shall the Buyout Amount be prorated for a period of time greater than[/*/ CONFIDENTIAL TREATMENT REQUESTED] from the effective date of termination.

 

2.05. Other Grounds for Termination.In addition to termination rights specified above, the Parties shall have theright to terminate this Agreement as specified below:

 

(A) Termination for Insolvency. A Partymay terminate this Agreement if the other Party (a) files a voluntarypetition in bankruptcy (b) becomes, the subject of any involuntarypetition in bankruptcy or proceedings related to its liquidation, insolvency,or the appointment of a receiver or similar officer for it, which proceedings,if involuntary, are not dismissed within ninety (90) calendar days.

 

(B) Termination for Cause.

 

1)              In the eventSEI fails to achieve the Performance Standards set forth in **Exhibit B** for [/*/ CONFIDENTIALTREATMENT REQUESTED] consecutive months or [/*/ CONFIDENTIAL TREATMENTREQUESTED] months (non-consecutive) in any [/*/ CONFIDENTIAL TREATMENTREQUESTED] month period, Customer shall have the right to terminate theAgreement provided that Customer shall have given notice to SEI of its failure

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

tocomply with the Performance Standards within thirty (30) calendar days afterany month for which the Performance Standards are not achieved.

 

2)              Customer shallhave the right to terminate the Agreement in the event that the SEI data centeris inoperative and SEI is unable to provide the Trust 3000 Service for [/*/CONFIDENTIAL TREATMENT REQUESTED] consecutive hours during any consecutivebusiness days other than due to an event or circumstance subject to Section 10.05of this Agreement; provided, however, that SEI will be deemed to be providingthe Trust 3000 Service for purposes hereof if it has implemented its then current SEI Disaster Recovery Plan (thecurrent version (as of the Designated Date) is attached as **Exhibit D**) in accordance with itsterms.  The foregoing shall not beintended to limit or otherwise affect SEI’s obligation to provide normalrecovery procedures or any other disaster recovery services as described SEI’sDisaster Recovery Plan.

 

3)              Either SEI orCustomer may terminate this Agreement if a Default of the other Party is notcured during the applicable cure period set forth below in this Section 2.05(B)(3). “Default” shall mean a breach by a Party (the “Breaching Party”) whichresults in the other Party experiencing a substantial deprivation of thebenefit of this Agreement, provided that such breach, if curable, is: (i) notcured by the Breaching Party within thirty (30) calendar days after theBreaching Party has received written notice of such material breach; or (ii) ifthe material breach is one that could not reasonably be cured within thirty(30) calendar days; (y) the failure by the Breaching Party to adopt, withinthirty (30) calendar days after receiving notice of such breach, a plan to curesuch breach within a time period not longer than sixty (60) calendar days afterreceipt of such notice of the breach, or (z) the failure by the Breaching Partyto cure such breach within such sixty (60) calendar day period. The provisionsof this Section 2.05 (B)(3)are not intended to limit Customer’s right todispute any Fees in accordance with Section 3.03 of this Agreement.

 

4)              Exercise of Section 2.05Termination. In order to exercise its right of terminationunder this Section 2.05 (hereinafter a “Section 2.05 Termination”),the terminating Party must, within 60 calendar days after the date that suchParty first became aware or reasonably should have become aware of its right oftermination under this Section 2.05, provide the other Party with writtennotice (a “Section 2.05 Notice”) specifying the scheduled date on whichthe termination of this Agreement is to occur, which date shall not be lessthan one hundred eighty (180) calendar days after the date of the Section 2.05Notice nor more than one (1) year after the date of the Section 2.05Notice; and the terminating Party must not be in material breach of thisAgreement at the time it provides such Section 2.05 Notice.

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

IfCustomer terminates this Agreement under Section 2.05(B) Customershall have no obligation to pay SEI the Buyout Amount, but Customer shall beobligated to pay the other amounts specified in Section 9.01.2.  If SEI terminates this Agreement under Section 2.05(B) Customershall have to pay SEI the Buyout Amount and the other amounts specified in Section 9.01.2.

 

SECTION 3. PAYMENT OF FEES AND OTHER EXPENSES

 

3.01. Fees. Customer agrees to pay to SEI thefees specified in **Exhibit A,**as such fees may be adjusted from time to time hereunder pursuant to thisAgreement (collectively, the “Fees”). Upon Customer’s request, SEI will provideCustomer with reasonable back-up support for the invoices.

 

3.02. Terms. Customer agrees to pay SEI theFees in advance for each month commencing on the first day of the Basic Term(except that activity based fees will be billed in arrears), each such paymentto be due thirty (30) calendar days after the date of Customer’s receipt of theinvoice.  Customer agrees to pay intereston all amounts past due at the rate of one percent (1%) per month, if such rateis permitted by law, or otherwise at the highest rate permitted by law,provided, however, that no interest will be due on amounts disputed by Customerin good faith and on reasonable grounds.

 

3.03. Disputed Amounts. In the event Customerin good faith disputes all or any portion of any SEI invoice, Customer shallpromptly notify SEI thereof and shall include in such written notice the amountthat Customer so disputes and its reason for such dispute. Customer shall alsopay that portion of any such invoice that it does not dispute and shall do sowithin thirty (30) calendar days after receipt of invoice.  Upon receipt of Customer’s dispute notice,SEI and Customer will work together in good faith to resolve such dispute in aprompt and mutually acceptable manner. Customer will pay any disputed amounts no later than thirty (30)calendar days after the dispute relative to such amounts have been resolved.

 

3.04. Taxes. Customer agrees to pay all state and local sales, use, property or othertaxes (except for any personal property taxes on property SEI’s owns or leases,for franchise and privilege taxes on SEI’s business, gross receipts taxes towhich SEI is subject, and for income taxes based on SEI’s income), which may beaccessed against SEI or Customer or Customer’s customers with respectspecifically to this Agreement, the Trust 3000 Service or any equipmentprovided by SEI hereunder.  At itsoption, SEI may include such taxes in its invoices in which event Customershall pay to SEI the taxes so invoiced.

 

3.05. Adjustment of Fees. At any time after December 31,2004, SEI may increase the Fees set forth in Exhibit A hereto, providedthat SEI provides Customer no less than sixty (60) calendar days advancewritten notice of such increase (“Fee Increase Notification”), in an amount notto exceed the lesser of: (i) [/*/ CONFIDENTIAL TREATMENT REQUESTED]percent ([/*/ CONFIDENTIAL TREATMENT

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

REQUESTED]%); or (ii) the percentage increase in the CPIsince the Designated Date, with respect to the first increase, and since thedate of the last increase, with respect to the second and any subsequentincreases (the “CPI Percentage Increase”); provided, however, in the event theCPI Percentage Increase is greater than [/*/ CONFIDENTIAL TREATMENT REQUESTED]percent ([/*/ CONFIDENTIAL TREATMENT REQUESTED]%), the amount of the excess ofthe CPI Percentage Increase over [/*/ CONFIDENTIAL TREATMENT REQUESTED] percent([/*/ CONFIDENTIAL TREATMENT REQUESTED]%) may be applied to increase the feespayable hereunder in any subsequent year to the extent the CPI PercentageIncrease in such year is less than [/*/ CONFIDENTIAL TREATMENT REQUESTED]percent ([/*/ CONFIDENTIAL TREATMENT REQUESTED]%).  In no event shall there be more than oneincrease in any [/*/ CONFIDENTIAL TREATMENT REQUESTED] period.  As used herein, the term “CPI” means theUnadjusted Consumer Price Index, as published in the Summary Data from theConsumer Price Index News Release by the Bureau of Labor Statistics, U.S.Department of Labor, For All Urban Consumers (CPI-U).  In the event the Bureau of Labor Statisticsstops publishing the CPI or substantially changes its content and format,Customer and SEI will substitute another comparable index published at leastannually by a mutually agreeable source.

 

Notwithstanding the foregoing, SEI will not increasethe Fees, as set forth above, during the period from [/*/ CONFIDENTIALTREATMENT REQUESTED] through [/*/ CONFIDENTIAL TREATMENT REQUESTED].  However, during this period, SEI may send outa Fee Increase Notification that may provide for an increase in the Fees whichwill take effect after [/*/ CONFIDENTIAL TREATMENT REQUESTED].  Further, with respect to the first adjustmenteffective after [/*/ CONFIDENTIAL TREATMENT REQUESTED], such adjustment shallnot exceed the lesser of: (i) [/*/ CONFIDENTIAL TREATMENT REQUESTED]percent ([/*/ CONFIDENTIAL TREATMENT REQUESTED]%); or (ii) the percentageincrease in the CPI since [/*/ CONFIDENTIAL TREATMENT REQUESTED].

 

Notwithstanding the above, SEI may at any time uponno less than sixty (60) calendar days written notice increase the Feesapplicable to telecommunication services and other Third Party Servicesindicated on **Exhibit A**attached hereto provided**,**however,that (1) such increases shall not exceed the corresponding percentage feeincrease to SEI from the applicable Third Party Vendors; and (2) Customerwill be permitted to terminate a Third Party Service, without payment of anyearly termination fees related to such terminated Third Party Service(s) , ifthe increase for such Third Party Service exceeds [/*/ CONFIDENTIAL TREATMENTREQUESTED] percent ([/*/ CONFIDENTIAL TREATMENT REQUESTED]%) in any calendaryear.  In order to so terminate a ThirdParty Service, Customer must provide written notice to SEI of its intent toterminate the applicable Third Party Service within ninety (90) calendar daysafter receiving notice of the Third Party Service price increase from SEI thatcaused the increase to exceed such [/*/ CONFIDENTIAL TREATMENT REQUESTED]%threshold.

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

3.06. Renegotiation of Fees upon Significant Lossof Trust Accounts. In the event during the term of this Agreement, Customer’strust accounts shall decline in an amount equal to or greater than [/*/CONFIDENTIAL TREATMENT REQUESTED] percent ([/*/ CONFIDENTIAL TREATMENTREQUESTED]%) less than those trust accounts levels existing as of theDesignated Date, and providing such decline in accounts is not due to a sale orother transfer of accounts, then in such event, upon written request ofCustomer, SEI agrees to discuss in good faith with Customer an adjustment ofthe Fees payable pursuant to **Exhibit A**attachedhereto.  It is understood that suchdiscussion shall not be intended as an obligation for SEI to reduce the Fees(and that any such reduction in accounts could actually result in the increasein certain Fees and the decrease of other Fees), but rather an obligation toengage in good faith discussions.  In noevent shall SEI have any to engage in any such negotiations more than one (1) timeduring the term of this Agreement.  Theforegoing shall not be construed to permit Customer to circumvent or reduceCustomer’s obligations with respect to a Termination for Convenience.

 

SECTION 4. COVENANTS OF CUSTOMER 

 

4.01Limitations on Use of TRUST 3000 Service.

 

4.01.01            Customer agreesthat it shall not permit the Trust 3000 Service to be used by or for any personor entity, or for the accounts of any person or entity, except for Customer,its Affiliates (domiciled in the United States or Canada only) or custodyclients of Customer (domiciled in the United States or Canada) (collectively,the Affiliates and custody clients of Customer may be referred to as “CustomerCustomers”).  In connection with itsreceipt of Services, each of the Customer Customers shall observe and complywith, and Customer shall be responsible for such observance and compliance, allof the applicable provisions of this Agreement to be observed and performed byCustomer in connection with the receipt of services hereunder (other than the obligationto pay Fees and indemnification obligations, which shall remain the obligationsof Customer), and each of Customer Customers shall be deemed to have acceptedthis obligation by its receipt of services hereunder.

 

4.01.02            In the eventthat Customer or any Customer Customers acquire additional accounts, as aresult of a merger, stock acquisition, purchase or other transaction, Customermay use the Trust 3000 Service for such acquired accounts, further providedsuch acquired accounts have substantially similar processing characteristics asthe accounts being processed under this Agreement at the time of suchacquisition and that such acquired accounts will be processed on the samedatabase as Customer’s

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

otherAccounts, it being understood that to the extent that conversion services arerequired to be performed by SEI, Customer shall pay SEI for such services. Ifsuch acquired accounts do not have substantially similar processingcharacteristics as the accounts being processed under this Agreement at thetime of such acquisition, Customer and/or Customer Customers may use the Trust3000 Service in connection with such accounts; provided, however, appropriateadjustments are made to the provisions of this Agreement, to reflect, amongother things, the conversion of such acquired accounts to the TRUST 3000System, the conversion fee associated with the conversion of such accounts, andany significant differences between the processing characteristics of suchacquired accounts and the previously existing Accounts.  “Affiliate” is any company which controls, iscontrolled by, or under common control with, a Party, and “control” is definedas owning 50% or more of such entity. The parties agree to discuss in good faith and make mutually agreed uponmodifications to the Performance Standards to reflect any adverse impact to thePerformance Standards caused, or anticipated to be caused, by the addition ofsuch acquired accounts.

 

4.02. Customer represents and warrants to SEIIC andSEI that after reasonable inquiry, it (i) is not aware of any default byeither SEIIC or Customer of any the terms, conditions or provisions of theOriginal Agreement and (ii) has no claim against SEIIC and SEI under theOriginal Agreement.

 

4.03. INTENTIONALLY OMITTED

 

4.04. INTENTIONALLY OMITTED

 

4.05. Limitation of Use of Materials. Customershall not copy or reproduce or furnish to others, in any manner, any manuals,user documentation or other materials provided by SEI to Customer under thisAgreement except for copies made by Customer solely for its internal use andthe use by Customer’s Customers to the extent permitted by Section 4.01.

 

4.06. Customer Data.  Customer shall be solely responsible for theaccuracy and completeness of any data or other information provided by or onbehalf of Customer to SEI pursuant to this Agreement, and for the correctnessof the format in which the data or other information is presented.

 

4.07. Copyright Notices.  Customer agrees to preserve any copyright andtrade secret notices of SEI on materials where such notices appear.

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

4.08. Proprietary Rights. Customer agrees andacknowledges that:  the TRUST 3000System, the TRUST 3000 Service and related documentation, together with allother data and materials, all software codes, trade secrets, design concepts,discoveries, ideas, enhancements, improvements and inventions related thereto (“ProprietaryInformation”) supplied by SEI to Customer pursuant to this Agreement:  (i) are the exclusive property of SEIand shall remain so; (ii) are confidential and proprietary trade secretsof SEI, protected by law, and of substantial value to SEI, and may not  be used or disclosed without the writtenconsent of SEI, except as contemplated by the terms of this Agreement.

 

SECTION 5. COVENANTS OF SEI 

 

5.01Confidentiality of Customer Data.

 

SEI shall have access to Customer Data solely to theextent SEI requires such access to such data to provide the Trust 3000 Service.“Customer Data” shall mean, in or on any media or form of any kind: (i) alldata and summarized data related to Customer and Customer’s Customers that isentered into software or equipment on behalf of Customer and Customer’sCustomers and all data derived from such data (regardless of whether or notowned by Customer, generated or compiled by Customer, and including any suchdata on any deconversion tapes provided to Customer), and (ii) all otherCustomer-owned records, data, data files, input materials, reports, forms, andother such items that may be received, computed, processed, or stored by SEI,or by any of its subcontractors, in the performance of the Trust 3000 Serviceunder this Agreement.  SEI may onlyaccess and process Customer Data in connection herewith or as directed byCustomer in writing and may not otherwise modify Customer Data, merge it withother data, commercially exploit it, or otherwise use such data, other than asspecified herein or as directed by Customer in writing.  SEI understands and agrees that nothingcontained in this Agreement shall affect any ownership right, title, orinterest in Customer Data and Customer owns all copyright, trademark, tradesecrets, and other proprietary rights in the Customer Data.

 

SEI agrees that all copyrightable aspects of suchCustomer Data shall be considered “work made for hire” within the meaning ofthe Copyright Act of 1976, as amended. SEI hereby assigns to Customer exclusively all right, title, andinterest in and to the Customer Data and to all copyright or other proprietaryrights therein that it may obtain, without further consideration, free from anyclaim, lien for balance due, or rights of retention thereto on the part ofSEI.  SEI also acknowledges that theParties do not intend SEI to be a joint author of the Customer Data within themeaning of the Copyright Act of 1976, as amended, and that in no event shallSEI be deemed a joint author thereof.

 

SEI agrees to keep the Customer Data free and clearof all liens and encumbrances.  SEI shallnotify Customer promptly of the unauthorized possession, use or knowledge ofCustomer’s Data, or any other Confidential Information of Customer.

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

5.02. Security Precautions.

 

5.02.1 SEI agrees to provide and take securityprecautions so that access to the data stored in the TRUST 3000 System byCustomer is available only to persons utilizing the user numbers and passwordsassigned to Customer.

 

5.02.2 SEI further agrees to follow file, safekeeping,and backup procedures that may be required of SEI by law or rule orregulation of the Federal Deposit Insurance Corporation or the Comptroller ofthe Currency, or that are standard in the data processing industry for servicessimilar to those provided by SEI.

 

5.03. Access by Customer.  SEI agrees to grant the internal auditors ofCustomer and other personnel authorized by Customer reasonable access to SEI’sfacilities, and to books and records related to the provision of servicescontemplated by this Agreement.  SEIagrees to grant federal and other governmental and banking agencies, whenrequired by law or authorized by Customer, access to records of Customer heldby SEI.

 

5.04. SEI’s Right to Make Changes. In order toimprove the quality of service to Customer, SEI reserves the right to make changesat any time in rules of operation, Customer identification procedures, andtype of terminal equipment used or to be used in the TRUST 3000 System,provided that no such changes shall reduce the functionality of the system orshall conflict with or make inconsistent any of the terms or provisions of thisAgreement.  SEI will give Customerreasonable advance notice of any such change.

 

5.05. Save of Customer Data. SEI will prepareand preserve magnetic tapes containing Customer’s complete data base (the “SaveTapes”) to protect Customer from the loss of data in event of fire or otherevent which destroys data kept at SEI’s data center.  The Save Tapes will include daily tapes, endof month tapes and end of year tapes, as set forth on **Exhibit C**. SEI shall deliver the SaveTapes to a location other than SEI’s data center.  SEI will have no responsibility forfurnishing Customer Save Tapes in addition to those so made.  SEI shall have no obligation to retain anySave Tape whose data has been incorporated into a later Save Tape.

 

In addition, SEI shall perform back-ups ofCustomer’s complete data bases at least daily to facilitate efficient recoveryof Customer’s data should processing problems occur at SEI’s Data Center.  These daily backups shall be stored in amanner as SEI determines is appropriate to provide timely recovery of data lostat the data center.

 

5.06. Legislative Enhancements. Modificationsrequired to be made to the TRUST 3000 Service in order to comply with changesin federal banking laws or regulations will be made available to Customer.  Each such change shall be made andimplemented as soon as practicable, and in any event by such time as the changemay be necessary as required by law.  Thedevelopment of new software modules or major changes to existing softwaremodules required to comply with federal laws or regulations will be madeavailable to Customer at a price equal to the total time and materials

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

required to implement such additions prorated on an equitablebasis among all affected TRUST 3000 customers. SEI shall charge Customer a pro-rata portion of the costs incurred bySEI for the development and implementation of such additions based on thenumber of accounts subject to this Agreement, relative to the total number ofaccounts processed by SEI for other customers of SEI that are affected by suchadditions.  To the extent modificationsare required to comply with Securities and Exchange Commission Regulations thatdo not apply to SEI’s Customer base in general, SEI will use reasonable effortsin good faith to make such modifications by such time as they may be requiredby law or regulation provided Customer shall have given SEI prompt notificationof the need for such modification and provided Customer shall have agreed topay the cost thereof.

 

5.07. Third Party Services. SEI agrees toprovide to Customer services from external third party sources (“Third PartyServices”).  Such Third Party Services,if any, are referenced in **Exhibit A**.SEI warrants and represents that it has obtained from such third party vendors(“Third Party Vendors”) the rights to provide such Third Party Services toCustomer.  To the extent that any suchThird Party Services are provided to Customer hereunder, Customer agrees thatsuch Third Party Services are proprietary to the Third Party Vendors; suchThird Party Services are provided by the Third Party Vendors on an “AS IS WITHALL FAULTS” basis for Customer’s internal use and as normally required onstatements, reports, screens and other documents necessary to support Customer’sCustomers and shall not be redistributed to other third parties; the ThirdParty Vendors MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THEMERCHANTABILITY, FITNESS, OR ANY OTHER MATTER with respect to such Third PartyServices; and the Third Party Vendors shall not be liable for any damagessuffered by Customer in the use of such Third Party Services, includingliability for any incidental, consequential or similar damages.  Notwithstanding the foregoing, if any ThirdParty Vendor fails to provide the Third Party Services to be provided by suchThird Party Vendor, SEI shall (1) assert any claims that it may haveagainst such Third Party Vendor under SEI’s agreement with such Third PartyVendor with respect to such failure (and any recovery related to such claimshall inure to Customer), and (2) use commercially reasonable efforts tocause such Third Party Vendor to perform the applicable Third Party Services.

 

SEI shall indemnify, defend, and hold the Customer harmlessfrom and against any and all claims, losses and liabilities that are related toany claim by any Third Party Vendor that is based upon an alleged breach by SEIof any agreement with that Third Party Vendor, except to the extent such breacharises out of Customer’s breach of this Agreement.  Customer shall indemnify, defend, and holdSEI harmless from and against any and all claims, losses and liabilities thatare related to any such claim to the extent such breach arises out of Customer’sbreach of this Agreement.  Each of theParties shall comply with the indemnification procedures set forth in Section 10.13of this Agreement.

 

It is further understood and agreed that access toany Third Party Service may be withdrawn by SEI upon termination of SEI’s rightto redistribute specific product

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANTTO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, ASAMENDED.

 

----

 

offerings by such Third Party Vendors.  SEI shall promptly notify Customer of anyproduct offerings to be withdrawn or any significant change in any product oncesuch withdrawal or change is known by SEI, and SEI shall make an appropriateadjustment to the Fees to reflect any such withdrawal of any Third PartyService by SEI.

 

5.08. Insurance. SEI shall carry anemployee fidelity bond and EDP errors and omissions insurance and miscellaneousprofessional liability insurance at levels not less than [/*/ CONFIDENTIALTREATMENT REQUESTED] per incident with reasonable deductibles. SEI shallprocure the commercial general liability insurance that provides limits of not lessthan [/*/ CONFIDENTIAL TREATMENT REQUESTED] ($[/*/ CONFIDENTIAL TREATMENTREQUESTED]).  The commercial generalliability policy shall include the following coverage: (i) premises andoperations; (ii) products/completed operations; (iii) contractualliability; (iv) personal injury and advertising injury liability; and (v) severabilityof interest clause.

 

SEIshall maintain a policy of workers’ compensation coverage for no less than theminimum statutory amount required for the State or States in which SEIemployees are performing Trust 3000 Service on Customer’s behalf, and employers’liability coverage for not less than [/*/ CONFIDENTIAL TREATMENT REQUESTED]Dollars ($[/*/ CONFIDENTIAL TREATMENT REQUESTED]) per occurrence for allemployees of SEI engaged in the performance of Services under this Agreement.

 

5.09. Disaster Recovery. SEI agrees to providedisaster recover service to enable Customer to resume processing capabilitiesin the event of a disaster at SEI’s data processing facility.  The timeframe for recovery, the processinglevels and the other disaster recovery services provided by SEI will be inaccordance with the then current SEI Disaster Recovery Plan.  A copy of the current version of the Client’sCopy of the SEI Disaster Recovery Plan is attached as **Exhibit D**. SEI shall provideCustomer with an updated copy of the Client’s Copy of the SEI Disaster RecoveryPlan promptly after any material changes to the Disaster Recovery Plan or uponCustomer’s request.  SEI shall not modifythe Disaster Recovery Plan so as to reduce in any significant way, the benefitsand protections provided to Customer under such Disaster Recovery Plan as ofthe Designated Date.   SEI shall providesuch disaster recovery services at all times without regard to any Force MajeureEvent (except to the extent and only to the extent that a Force Majeure Eventalso impacts the disaster recovery plan).

 

5.10 Client’s Customers. In addition to SEI’sobligations with respect to the treatment of Customer’s ConfidentialInformation contained in Section 6 of this Agreement, SEI agrees that itshall not use any of Customer Data or any Confidential Information of Customerto solicit as direct customers of SEI any of Customer’s customers.

 

SECTION 6.  CONFIDENTIALITY/PROPRIETARY INFORMATION

 

6.01 Confidential Information. “ConfidentialInformation” means (i) with respect to

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

Customer, all Customer Data; (ii) with respect to SEI,the Proprietary Information and the provisions of this Agreement; and (iii) withrespect to each Party, any of the Disclosing Party’s proprietary orconfidential information including, without limitation, technical data; tradesecrets; know-how; business processes; product plans; product designs; serviceplans; services; customer lists and customers; markets; software; developments;inventions; processes; formulas; technology; designs; drawings; and marketing,distribution or sales methods and SEI Systems; sales and profit figures orother financial information that is disclosed, directly or indirectly, to aParty (in such capacity the “Recipient”) by or on behalf of the other Party (insuch capacity, the “Disclosing Party”), whether in writing, orally or by othermeans and whether or not such information is marked as confidential.  However, “Confidential Information” does notinclude any of the information that: (i) prior to disclosure hereunder bythe Disclosing Party, was generally known to the public; (ii) afterdisclosure hereunder by the Disclosing Party, becomes known to the publicthrough no act or omission of the Recipient or any of its representatives (iii) theRecipient can demonstrate by written records was previously known by it or wasindependently developed by or for it without use of the ConfidentialInformation; or (iv) is, or becomes available to the Recipient on anon-confidential basis from another Person that, to the Recipient’s knowledge,is not prohibited from disclosing such information to the Recipient by a legal,contractual or fiduciary obligation to the Disclosing Party.

 

6.02 Non-Disclosure Obligations. All ConfidentialInformation of a Disclosing Party shall be held in confidence by the Recipient,to the same extent, and in at least the same manner, as the Recipient protectsits own confidential and proprietary information of a similar nature, whichshall in no event be less than a commercially reasonable standard of care.  Except as specifically permitted by thisAgreement the Recipient shall not disclose, publish, release, transfer, orotherwise make available, any Confidential Information of the Disclosing Party,in any form to, or for the use or benefit of, any Person, without theDisclosing Party’s consent.

 

6.03 Permitted Use and Disclosure.Notwithstanding the foregoing, the Recipient shall be permitted to use and todisclose the Disclosing Party’s Confidential Information to its officers,agents, subcontractors and employees (collectively, the “Permitted Employeesand Consultants” who have agreed in writing to maintain the confidentiality ofthe Confidential Information, to the extent that such use and disclosure isnecessary or appropriate for the performance of the Recipient’s obligationsunder this Agreement and/or as needed to conduct Recipient’s business.  The obligations contained in this Section 6shall not restrict any disclosure by any Recipient as required by anyapplicable law, or by order of any court or government agency; provided that tothe extent reasonably possible (and so long as not prohibited by law) suchRecipient gives prompt notice to the Disclosing Party of such order, such thatthe Disclosing Party may (i) interpose an objection to such disclosure, (ii) takeaction to assure confidential handling of the Confidential Information, or (iii) takesuch other action as it deems appropriate to protect the ConfidentialInformation.

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANTTO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, ASAMENDED.

 

----

 

6.04 Additional Obligations of Customer.

 

Customershall not use any of SEI’s Confidential Information to create or attempt tocreate, nor permit others to create or attempt to create, in whole or in part,the Trust 3000 System. In addition, Customer agrees to preserve any copyrightand trade secret notices of SEI on materials where such notices appear.  Customer shall immediately notify SEI of theunauthorized possession, use or knowledge of any item supplied to Customerpursuant to this Agreement.

 

Customershall not copy or reproduce in any manner any manuals, user documentation orother materials provided by SEI to Customer under this Agreement except forcopies made by Customer solely for its internal use by Permitted Employees andConsultants.

 

6.05 Compliance with Gramm-Leach-Bliley Act. Inconnection with the activities contemplated by this Agreement, each Party shallcomply with all applicable provisions of the Gramm-Leach-Bliley Act (as suchAct may be amended from time to time), including, without limitation,applicable provisions regarding the sharing or disclosure of Nonpublic PersonalInformation (as such term is defined in the Gramm-Leach-Bliley Act).

 

6.06 Unauthorized Acts.  In the event of any unauthorized use ordisclosure by the Recipient of any Confidential Information of the DisclosingParty, the Recipient shall promptly (i) notify the Disclosing Party of theunauthorized use or disclosure; (ii) take all reasonable actions to limitthe adverse effect on the Disclosing Party of such unauthorized use ordisclosure; and (iii) take all reasonable action to protect against arecurrence of the unauthorized use or disclosure.

 

6.07 Return of Confidential Information. Upon thewritten request of the Disclosing Party after the termination of thisAgreement, the Recipient shall, at the option of the Recipient, return ordestroy all Confidential Information of the Disclosing Party that is then inthe possession or control of the Disclosing Party, provided, however, theRecipient may retain such Confidential Information of the Disclosing Party asmay be necessary or appropriate for the Recipient to comply with reasonablelegal, accounting, regulatory and archival concerns.  Notwithstanding the foregoing, SEI shall haveno obligation to return or destroy Confidential Information of

 

Customer that resides on the Trust3000 System or insave tapes of SEI.  Upon the DisclosingParty’s written request, the Recipient shall promptly certify in writing itscompliance with this Section 6.07.

 

6.08 Equitable Relief. Each Party acknowledges thatthe unauthorized disclosure of the Disclosing Party’s Confidential Informationmay cause irreparable injury to the Disclosing Party and that, in the event ofa violation or threatened violation of any

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

obligations of the Recipient regarding such ConfidentialInformation, the Disclosing Party may have no adequate remedy at law. In suchevent, the Disclosing Party shall be entitled to seek enforcement of each suchobligation by temporary or permanent injunctive, or mandatory relief obtainedin any court of competent jurisdiction, without the necessity of the posting ofany bond or other security, and without prejudice to any other rights andremedies which may be available to the Disclosing Party at law or in equity.

 

SECTION 7. WARRANTY

 

7.01. Warranty. SEI hereby warrants that itowns the TRUST 3000 System and has all the necessary authority to enter into thisAgreement and provide the Trust 3000 Service described herein.  SEI also warrants that the TRUST 3000 Systemwill perform substantially as described in the Users Manuals for the functionsspecified on **Exhibit A**.

 

Except as expressly stated herein, SEI MAKESNO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TRUST 3000 SYSTEMOR THE TRUST 3000 SERVICE OR ANY SERVICE PROVIDED HEREUNDER, ITSMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

7.02 Remedy for Breach. SEI herebyindemnifies and agrees to hold harmless and defend Customer from any claimsbrought against Customer based upon a defect in SEI’s title to, or power togrant Customer the use of, the Trust 3000 Service or any trademark, copyright,or patent infringement with respect to the Trust 3000 Service except to theextent such breach arises out of Customer’s breach of this Agreement.  Customer shall indemnify, defend, and holdSEI harmless from and against any and all claims, losses and liabilities thatare related to any such claim to the extent such breach arises out of Customer’sbreach of this Agreement.  Each of theParties shall comply with the indemnification procedures set forth in Section 10.13of this Agreement.

 

7.03**Custom Enhancements or Modifications tothe Trust 3000 Service**.

 

7.03.1                  Subject to thelimitations set forth below and the notice, control, cooperation andlimitations contained in Section 10.13, SEI will indemnify and holdharmless Customer and defend at SEI’s sole expense, and, at its option, maycontest and/or settle, any claim, suit, or proceeding brought against Customerto the extent that it is based on an assertion that any custom enhancements ormodifications to the TRUST 3000 Service performed by SEI (or SEI’s delegate) onbehalf of Customer (collectively such enhancements and modifications may bereferred to as “Custom Enhancement/Work”) infringes any United States patent,or copyright, or infringes on any trade secret or proprietary right, of anythird party.  Should any CustomEnhancement/Work become the subject of any such claim, suit, or proceeding, SEIshall have

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

theright, at SEI’s option and expense (i) promptly procure for Customer theright to continue using the Custom Enhancement/Work; or (ii) promptly replaceor modify the Custom Enhancement/Work with a non-infringing version of CustomEnhancement/Work with substantially equivalent function and performance. Ifneither such option is available to SEI on commercially reasonable terms, thenSEI may terminate the services that are the subject of such claim, suit, orproceeding and make an appropriate reduction in Fees payable hereunder. Theremedies set forth in this Section 7.03.1, together with SEI’sindemnification obligations under this Section 7.03.1, shall be Customer’ssole and exclusive remedies with respect to any claims that any CustomEnhancement/Work, infringes or misappropriates any third-party intellectualproperty right.

 

7.03.2                  Notwithstandingthe provisions of Section 7.03.1, and subject to the notice, control,cooperation and limitations contained in Section 10.13, Customer willindemnify and hold harmless SEI, and defend at Customer’s sole expense, and, atits option, may contest and/or settle, any claim, suit, or proceeding broughtagainst SEI or Customer (and SEI will not be obligated to defend or settle andwill not be liable for any related expenses or costs) to the extent any suit orproceeding results from: (i) SEI’s compliance with Customer’s design,content, specifications or instructions; (ii) modification of the CustomEnhancement/Work by a party other than SEI who is not working at or under SEI’sdirection; or (iii) the use of the Custom Enhancement/Work or any partthereof furnished hereunder in combination with any other software or product,other than the Trust3000 Service, where the infringement would not haveoccurred but for such combination.

 

7.03.3                  Eachof the Parties shall comply with the indemnification procedures set forth in Section 10.13of this Agreement.

 

7.03.4                  Allreferences to the “Trust 3000 Services Agreement” in any Work Authorization(s)executed after the date of this Agreement, shall mean this Agreement, as thisAgreement may be amended from time to time.

 

7.03.5                  Withrespect to suspension or termination of any project covered by a WorkAuthorization, notwithstanding anything contained in any Work Authorization tothe contrary, it is understood that SEI shall have the right to re-estimate thecosts associated with the project covered by such Work Authorization, if workon such project is

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

resumed after 60 days from the date Customer made theelection to suspend the work (unless a shorter period of time is indicated inthe applicable Work Authorization).  Inaddition, it is understood that if work is terminated under any WorkAuthorization, SEI will only bill Customer for work that has actually beenperformed through the date that work was terminated, plus any applicable traveland living expenses (if applicable).

 

7.03.6                  In the eventthat Customer terminates work on a project covered by a Work Authorization duesolely to SEI’s uncured material breach of this Agreement or the applicableWork Authorization, Customer reserves the right to dispute payment of SEI’sfees due under such Work Authorization.

 

SECTION 8. LIMITATION OF LIABILITY 

 

8.01         Except asotherwise provided below in this Section 8, the cumulative liability ofeach Party hereunder for all claims relating to this Agreement, shall belimited to (a) monetary damages not to exceed the amount of [/*/CONFIDENTIAL TREATMENT REQUESTED] payable hereunder, and, in addition, withrespect to SEI, the correction, re-creation, or restoration of any incorrect,missing, incomplete, or unreadable reports.

 

8.02         SEI shallhave no liability for errors, omissions or malfunctions in SOUCE 3000, thetransmission of SOURCE 3000 and any user manuals and documentation associatedwith SOURCE 3000 other than its obligation, upon receipt of notice fromCustomer, to endeavor to correct any such errors, omissions ormalfunctions.  SEI shall have noliability for temporary delays, breakdowns or interruptions in SOURCE 3000,howsoever caused.  Customer’s exclusiveremedy, and SEI’s entire liability, for direct damages incurred by Customer forany and all causes relating to Source 3000, whether for breach of thisAgreement, negligence, or otherwise, shall in the aggregate not exceed [/*/CONFIDENTIAL TREATMENT REQUESTED] average billing to Customer over the [/*/CONFIDENTIAL TREATMENT REQUESTED] months preceding the month in which thedamage or injury is alleged to have occurred, but if Customer has not utilizedSOURCE 3000 for [/*/ CONFIDENTIAL TREATMENT REQUESTED] months preceding suchdate, then over such fewer number of preceding months that Customer hasutilized SOURCE 3000.

 

8.03         THEFOREGOING LIMITATIONS SHALL NOT APPLY TO: (A) LOSSES SUBJECT TOINDEMNIFICATION UNDER THIS AGREEMENT, (B) LIABILITY ARISING AS A RESULT OFA FAILURE TO COMPLY WITH THE CONFIDENTIALITY OBLIGATIONS CONTAINED IN THISAGREEMENT, (C) CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE OR OWING UNDER

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

THIS AGREEMENT, (D) ANY DAMAGES FOR BODILY INJURY(INCLUDING DEATH) AND DAMAGES TO REAL PROPERTY FOR WHICH A PARTY IS LEGALLYLIABLE, (E) LOSSES ARISING FROM A PARTY’S WILLFUL MISCONDUCT.

 

8.04 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANYINCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OFANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS ORINTERRUPTION OF BUSINESS, WHETHER SUCH LIABILITY IS PREDICATED ON CONTRACT,STRICT LIABILITY OR ANY OTHER THEORY.

 

Notwithstanding anything in this Agreement to thecontrary, the following shall be considered direct damages and neither Partyshall assert that they are indirect, incidental, special, or consequentialdamages or lost profits: [/*/ CONFIDENTIAL TREATMENT REQUESTED].  The intention of the foregoing is to avoidany doubt on how those types of damages should be classified under thisAgreement.  However, the foregoing is notintended to be exclusive or exhaustive.

 

SECTION 9. TERMINATION 

 

9.01Obligations Upon Expiration or Termination of Agreement.

 

**9.01.1 Deconversion Services.**

 

UponCustomer’s request in connection with the expiration or termination of thisAgreement under Section 2, SEI will provide Customer with the deconversionservices described on **Exhibit E**and Customer will pay to SEI the fees for such services as set forth on **Exhibit E**. All such amounts to be duethirty (30) calendar days after the date of Customer’s receipt of theinvoice.  Customer agrees to pay intereston all amounts past due at the rate of one percent (1%) per month, if such rateis permitted by law, or otherwise at the highest rate permitted by law, provided,however, that no interest will be due on amounts disputed by Customer in goodfaith and on reasonable grounds.

 

**9.01.2 Payment of Fees.**

 

In addition to any Buyout Amount that may be payable to SEI under thisAgreement, Customer shall pay SEI (A) the Fees for products and servicesprovided prior to the effective date of expiration or termination; (B) anytermination fees imposed on SEI by third parties to the extent directlyrelating to such termination (except in the event of a termination under Section 2.03or a termination by Customer under 2.05, in which case

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

Customer shall not have to pay for any termination fees imposed on SEIby Third Party Vendors to the extent directly relating to such termination);and (C) any fees for deconversion or other post-termination services whichCustomer may request and SEI may provide including those specified in Section 2.04B (post termination TRUST 3000 System Retrieval), this Section 9, and **Exhibit E**. All such amounts to be duethirty (30) calendar days after the date of Customer’s receipt of the invoice.

 

Customeragrees to pay interest on all amounts past due at the rate of one percent (1%)per month, if such rate is permitted by law, or otherwise at the highest ratepermitted by law, provided, however, that no interest will be due on amountsdisputed by Customer in good faith and on reasonable grounds.

 

Inaddition, Customer will be obligated to reimburse SEI for any charges fortelecommunication services and other third-party provided services asreferenced in **Exhibit A**incurred by SEI on Customer’s behalf with respect to services provided prior tothe termination of this Agreement.  Customer acknowledges that there is a time lag between the time thatcertain services are provided until the time that SEI bills for such services,and that SEI invoices certain of such services up to ninety (90) calendar daysafter the date services are provided.

 

**9.01.3 Return of Confidential Information.**

 

TheParties shall comply with the provisions of Section 6.07 of this Agreementin connection with the return of Confidential Information of the other Party.

 

SECTION 10. GENERAL PROVISIONS 

 

10.01 Notice. Except as expressly otherwise stated herein, allnotices, requests, consents, approvals, or other communications provided for,or given under, this Agreement, shall be in writing and shall be deemed to havebeen duly given and received (a) when delivered personally, or (b) ifdelivered by a reputable commercial overnight carrier (e.g., Federal Express),one business day after delivery to such carrier, or (c) if delivered bycertified or registered U.S. mail, postage prepaid and return receiptrequested, seven business days after mailing; in each case sent to the Party tobe notified at the address for such Party set forth below, or at such otheraddress of which such Party has provided notice in accordance with theprovisions of this Section:

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

**Notices to Customer shall be addressed as follows:**

 

InvestorsBank & Trust Company 200 Clarendon Street Boston, MA 02117 Attention: Senior Director, Institutional Custody

 

witha copy to the attention of Customer’s General Counsel addressed as follows:

 

InvestorsBank & Trust Company 200 Clarendon Street Boston, MA 02117 Attention: General Counsel

 

**Notices to SEI shall be addressed as follows:**

 

SEI Global Services, Inc.

OneFreedom Valley DriveOaks, PA 19456 Attention: Vice President, National Bank Marketing

 

witha copy to the attention of Customer’s General Counsel addressed as follows:

 

SEIGlobal Services, Inc. One Freedom Valley DriveOaks, PA 19456 Attention: General Counsel

 

10.02. Counterparts. This Agreement may beexecuted in any number of counterparts and any Party hereto may execute anysuch counterpart, each of which when executed and delivered shall be deemed tobe an original and all of which counterparts taken together shall constitutebut one and the same instrument.  ThisAgreement shall become binding when one or more counterparts taken togethershall have been executed and delivered by the parties.  It shall not be necessary in making proof ofthis Agreement or any other counterparts hereof to product or account for anyof the other counterparts.

 

10.03. Agreement for Sole Benefit of SEI andCustomer. This Agreement is for the sole and exclusive benefit of SEI andCustomer and shall not be deemed to be for the direct or indirect benefit ofthe clients or customers of Customer. The clients or customers of Customer shall not be deemed to be thirdparty beneficiaries of this Agreement or have any other contractualrelationship with SEI by reason of this

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

Agreement, and each Party hereto agrees to indemnify and holdharmless the other Party from any claims of its customers against the otherParty including any attendant expenses and reasonable attorneys’ fees, based onthis Agreement or the services provided hereunder.

 

10.04. Assignment. Customershall have the right to assign or delegate all or part of its rights,responsibilities or duties hereunder to any wholly-owned direct or indirectsubsidiary of Investors Financial Services Corp. upon the provision of noticeto SEI, but no such assignment shall relieve Customer of its obligations underthis Agreement.  Such assignment shall bevalid only so long as the assignee or delegatee remains a wholly-ownedsubsidiary of Investors Financial Services Corp.  In addition to its rights under Sections 1.01and 5.07, SEI shall have the right to assign or delegate all or part of itsrights, responsibilities, or duties hereunder to SEI Investments Company or anywholly-owned direct or indirect subsidiary of SEI Investments Company, upon theprovision of prior written notice to Customer, but no such assignment shallrelieve SEI of its obligations under this Agreement.  Such assignment or delegation will be validonly so long as the assignee or delegatee remains a wholly-owned direct orindirect subsidiary of SEI Investments Company. Any other assignment or delegation (including, without limitation, anyassignment, transfer, or delegation by operation of law in connection with amerger or otherwise) by either Party hereto shall require the prior writtenapproval of the other Party hereto (which shall not be unreasonably withheld ordelayed), other than an assignment by SEI of the contract rights to receivepayments for collateral security.

 

10.05. Force Majeure. If a Force Majeure Eventis the material contributing cause of a Party’s failure to perform any of itsobligations hereunder (other than the obligation to pay for any amounts owed),such obligations, after notification by such Party to the other Party, shall bedeemed suspended to the extent such obligations are directly affected by suchForce Majeure Event, until the Force Majeure Event has ended and a reasonableperiod of time for overcoming the effects thereof has passed; provided,however, that if a Force Majeure Event results in SEI being unable to performduring any extended period any or all of the Trust 3000 Service in accordancewith the terms hereof Customer shall be entitled to a share of SEI’s resourcesdevoted to returning SEI to full performance of all Trust 3000 Servicehereunder, that is equal to or greater than that of SEI’s similarly-situatedcustomers.  Both Parties shall usecommercially reasonable efforts to minimize delays that occur due to a ForceMajeure Event.  Other than as set forthabove, neither Party shall be excused from those obligations not affected by aForce Majeure Event (including disaster recovery services unless also affectedby such Force Majeure Event), and if the Force Majeure Event is predominantlycaused by either Party’s failure to comply with any of its obligations underthis Agreement or by either Party’s negligence or omission, there shall be norelief from any of that Party’s obligations under this Agreement.

 

“Force Majeure Event shall mean a catastrophic actof God, act of governmental body or military authority, epidemic, riot or civildisturbance, war, sabotage, or accidents beyond

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

the reasonable control of the non-performingParty.  Notwithstanding the foregoing, “ForceMajeure Event” expressly excludes the following: any event that non-performingParty could reasonably have prevented by testing by the non-performing Partyeither required to be performed pursuant to the Trust 3000 Service or necessaryto provide the Trust 3000 Service, work-around, or other exercise ofcommercially reasonable diligence; any event resulting from any strike,walkout, or other labor shortage of the non-performing Party; and any failureof any systems, facilities, or hardware that could have been prevented bytesting either required to be performed pursuant to the Trust 3000 Service ornecessary to provide the Trust 3000 Service. The occurrence of a Force MajeureEvent does not limit or otherwise affect SEI’s obligation to provide normalrecovery procedures or any other disaster recovery services as described in SEI’sDisaster Recovery Plan.

 

10.06. Governing Law. This Agreement will be governed inaccordance with the laws of the Commonwealth of Massachusetts without regard toits conflict of law principles or laws.

 

10.07. Heading. All section headings contained in this Agreement are forconvenience of reference only, do not form a part of this Agreement and shallnot affect in any way the meaning of interpretation of this Agreement.  Words used herein, regardless of the numberand gender specifically used, shall be deemed and construed to include anyother number, singular or plural, and any other gender, masculine, feminine orneuter, as the contract requires.

 

10.08. Contents of Agreement. This Agreementand its Exhibit(s) set forth the entire understanding of the parties heretowith respect to the transactions contemplated hereby.  It shall not be amended or modified except bywritten instrument duly execute by each of the parties hereto.  Any and all previous agreements andunderstandings between the parties regarding the subject matter hereof, whetherwritten or oral, are superseded by this Agreement.

 

10.09. Waiver. Any term or provision of thisAgreement may be waived at any time by the Party entitled to the benefitthereof by written instrument executed by such Party.  No failure of either Party hereto to exerciseany power or right granted hereunder, or to insist upon strict compliance withany obligation hereunder, and no custom or practice of the parties with regardto the terms of performance hereof, shall constitute a waiver of the rights ofsuch Party to demand full and exact compliance with the terms of thisAgreement.

 

10.10. Severability. In the event that anyprovision of this Agreement shall be found in violation of public policy orillegal or unenforceable in law or equity, such finding shall in no eventinvalidate any other provision of this Agreement.

 

10.11. Dispute Resolution. Any dispute about asignificant problem arising under this Agreement that may have a materialadverse impact on a Party (a “Problem”) shall

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

be resolved using procedures described in this Section.  As soon as a Problem is recognized by theParty that may be materially and adversely affected, such Party shall providenotice of the Problem to the other Party’s Representative.  The Representatives of the Parties shallattempt to promptly resolve the Problem. The Representatives for each Party are:

 

**For SEI**: SEI Senior Relationship Manger (as of theDesignated Date, the SEI Senior Relationship Manger is [/*/ CONFIDENTIAL TREATMENT REQUESTED])

 

**For Customer**: [/*/ CONFIDENTIALTREATMENT REQUESTED]

 

TheParties may change the Representatives by giving written notice of any changeinRepresentatives.

 

TheIssue Notification should, at a minimum, contain the following information, (i) descriptionof the Problem, (ii) its impact on quality and schedule of anydeliverables, (iii) suggested resolutions, and, (iv) time frame forissue resolution. Once a Problem has been raised, Representatives shouldattempt in good faith to reach a resolution within two (2) weeks.

 

Ifdespite the Parties good faith efforts, a dispute cannot be resolved throughthe procedure provided in Section, either Party shall have the right tocommence any legal proceeding as permitted by law.  Nothing in this Section shall prohibit aParty from pursuing injunctive or other relief if such relief is required toprotect the interests of such Party.

 

10.12. Substitution of Party. As ofthe Designated Date, SEI Global Services, Inc. shall for all purposes withrespect to this Agreement replace SEI Investments Company as a party to thisAgreement and SEI Global Services, Inc. (and not SEI Investments Company)shall, from the Designated Date forward, have all of the rights and obligationsof SEI Investments Company under this Agreement.  As of the Designated Date, the term “SEI” asused in this Agreement shall mean SEI Global Services, Inc.  Notwithstanding the foregoing, suchsubstitution does not relieve SEI Investments Company from any obligationshereunder.

 

10.13 Indemnification Procedures.  If any claim is commenced against a Partyentitled to indemnification under this Agreement (the “Indemnified Party”),notice thereof will be given to the Party that is obligated to provideindemnification (the “Indemnifying Party”) as promptly as practicable.  If, after such notice, the Indemnifying Partyacknowledges that this Agreement applies with respect to such claim, then theIndemnifying Party will be entitled, if it so elects, in a notice promptlydelivered to the Indemnified Party, but in no event less than ten (10) calendardays prior to the date on which a response to such claim is due, to immediatelytake control of the defense and

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

investigation of such claim and to employ and engageattorneys reasonably acceptable to the Indemnified Party to handle and defendthe same, at the Indemnifying Party’s sole cost and expense.  The Indemnified Party will cooperate, at thecost of the Indemnifying Party, in all reasonable respects with theIndemnifying Party and its attorneys in the investigation, trial and defense ofsuch claim and any appeal arising therefrom; provided, however, that theIndemnified Party may, at its own cost and expense, participate, through itsattorneys or otherwise, in such investigation, trial and defense of such claimand any appeal arising therefrom. No settlement of a claim that involves aremedy other than the payment of money by the Indemnifying Party will beentered into without the consent of the Indemnified Party.  After notice by the Indemnifying Party to theIndemnified Party of its election to assume full control of the defense of anysuch claim, the Indemnifying Party will not be liable to the Indemnified Partyfor any legal expenses incurred thereafter by such Indemnified Party inconnection with the defense of that claim. If the Indemnifying Party does not assume full control over the defenseof a claim subject to such defense, the Indemnifying Party may participate insuch defense, at its sole cost and expense, and the Indemnified Party will havethe right to defend the claim in such manner as it may deem appropriate, at thecost and expense of the Indemnifying Party.

 

10.14. Survival. The following shall survive theexpiration or termination of this Agreement: (i) the provisions of Sections6, 8, 9 and 10 in their entirety, and Sections 3.03, 3.04, 4.01.01, 4.02, 4.05,4.07, 4.08, 5.01, 5.02.1, 5.07, 5.10, 7.01, 7.02, 7.03.1, 7.03.2 and 7.03.3.

 

SECTION 11. EXHIBITS

 

11.01. Exhibits.  The following additional exhibits listedbelow and attached hereto are also incorporated herein by reference:

 

Exhibit A             Trust3000Service/Fees

Exhibit B              PerformanceStandards

Exhibit C              RecordRetention

Exhibit D              Client’sCopy of the SEI Disaster Recovery Plan

Exhibit E              DeconversionServices

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATESMATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEENREQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSIONPURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.

 

----

 

EACH PARTY HERETO ACKNOWLEDGES THAT EACHPARTY RESPECTIVELY HAS READ THIS AGREEMENT, UNDERSTANDS ITS TERMS, AND AGREESTO BE LEGALLY BOUND HEREBY.

 

IN WITNESS WHEREOF, the Parties hereto havecaused this Agreement to be executed in their respective names by their dulyauthorized representatives as of the Designated Date.

 

 
|   | SEI GLOBAL  SERVICES, INC.               |
|--------|------------------------------------------|
|   |                                     |
|   | BY:                                      |   |
|   |                                     |
|   | TITLE:                                   |   |
|   |                                     |
|   |                                     |
|   | INVESTORS  BANK & TRUST COMPANY |
|   |                                     |
|   | BY:                                      |   |
|   |                                     |
|   | TITLE                                    |   |
|        |                                          |  |  |

 

----

[/*/ CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIALTHAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED.ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 

----