Exhibit 10.17
Confidential Treatment
Requested
Redacted sections marked by
brackets [* *] have been omitted pursuant to a
request for confidential treatment and have been filed
separately.
February 7,
2006
Stephen C. Herndon
Senior Vice President
Global Government Group
600 Peachtree Street NE
Atlanta, GA 30308
Dear Stephen:
This letter details the agreement
between EPIQ Systems and Bank of America to extend our marketing
arrangement for Chapter 7 bankruptcy products and services, and
unless otherwise indicated, the terms of this letter will become
effective as of the date hereof.
1.
Modification
of Previous Agreements . This letter modifies and
amends the Agreement for Computerized Trustee Case Management
System dated November 22, 1993 (the “1993 Agreement”)
and all other agreements between the parties in writing, with
respect to the subject matter hereof, including but not limited to
this letter and those letters dated October 2, 2003, December 5,
2003, and March 29, 2004, (collectively, with the 1993 Agreement,
the “Letter Agreement”). If a provision of this letter
conflicts or is inconsistent with any provision of any other
component of the Letter Agreement, then the terms of this letter
will be controlling. Except as modified by this letter, the terms
of the 1993 Agreement and the Letter Agreements will continue in
full force and effect and will constitute our entire agreement and
supersede any other prior agreements (oral or
written). Terms with
initial capital letters shall have the meanings as defined in this
Agreement. The terms “party” and “parties”
shall refer to EPIQ Systems and Bank of America.
2.
Clients.
A.
Bank of America
reaffirms it will continue to accept new joint bankruptcy trustee clients into the EPIQ Systems & Bank of
America marketing arrangement as described in Section 1 and agrees
to make its products and services available to those bankruptcy
trustee clients that execute the appropriate service agreements
with EPIQ Systems and Bank of America, and such client shall be
deemed to be a joint client (the “Joint Clients”);
provided, however, that Bank of America, based on its reasonable
business judgment, shall have the right to reject a business
relationship with any such bankruptcy trustee
client.
B.
Each party will
determine its own level of sales and marketing resources and its
efforts with respect to marketing and servicing Joint Clients;
provided, however, that each party will coordinate and cooperate
with the other party in good faith with respect to Joint Client
calls.
C.
In client-facing
contexts, both parties agree to refer to one another as a marketing
ally and will not refer to one another as a vendor, customer,
supplier or sub-contractor.
3.
Non-Exclusive
Relationship.
A.
As of the
effective date of this letter, the marketing arrangement between
EPIQ Systems and Bank of America will continue on a non-exclusive
basis for all products and services offered by either party. The
marketing arrangement is not a vendor/supplier agreement, and
neither party is a customer/vendor of the other. Both parties
may independently or jointly market their services to their
respective bankruptcy trustee clients or other potential
clients for the purpose of
engaging in the Chapter 7 Trustee business .
B.
EPIQ Systems and
Bank of America will be entitled to engage other banks or software
providers, respectively, to provide the same services to its
clients as provided by the other party under the Letter
Agreement.
C.
[*Redacted
pursuant to a request for confidential treatment and filed
separately.*]
4.
Products and
Services . EPIQ Systems and Bank of
America agree to provide Joint Clients with products and services
in accordance with the Letter Agreement and in compliance with the
United States Trustee Chapter 7 Handbook and the United States
Bankruptcy Code. Each party will work in good faith to make
its products and services competitive in the marketplace and to
maintain the quality of its products and services on an on-going
basis.
5.
Fees.
Bank of
America agrees to compensate EPIQ Systems for the deposit portfolio
maintained at Bank of America and the Joint Client relationships
according to the Fee Schedules attached hereto as Exhibit A and
Exhibit B, as may be amended from time to time as permitted
herein. Modifications to the Fee Schedules may be requested
by either party and require the prior written consent of both
parties. All fees will be paid only by Bank of America
to EPIQ Systems directly. No fee payable hereunder will be
passed on or through to a Joint Client or any other third
party.
6.
Joint
Clients. Until this
marketing arrangement between EPIQ Systems and Bank of America is
terminated after following the procedure outlined in Section 9, the
parties agree that each Joint Client has the right to remain a
client of each of EPIQ Systems and Bank of America and to utilize
each party’s respective products and services in accordance
with the Letter Agreement. Notwithstanding Section 3 above,
Bank of America will not, and its Affiliates will not, directly or
indirectly support with its products or services a Joint Client
through any other arrangement with another third-party technology
provider for a period of time which is eighteen (18) months
following the completion of EPIQ Systems’ most recent
financial investment in hardware or on-site training for the
benefit of such Joint Client.
7.
Industry
Conventions. Both parties shall remain
in full compliance with U.S. Trustee and bankruptcy court
regulations pertaining to customer relationships, products and
services. If regulatory changes alter the industry
environment in a fashion that materially affects one or both
parties, then the parties shall work in good faith to negotiate an
appropriate modification, if any is warranted, to this marketing
relationship.
8.
Shared
Costs. If the parties
mutually agree to cooperatively convene Joint Client entertainment,
holiday dinners or other industry events, then the parties will
share these costs equally and will promptly reimburse one another
for actual out of pocket expenses (not to include charges for
travel, lodging or meals incurred by their own personnel).
Neither party will be required to convene or pay for any such
event, unless it so agrees in advance.
2
9.
Termination.
A.
Termination.
The Letter
Agreement will remain in effect unless terminated in accordance
with the provisions of this Letter Agreement. Either party may
initiate termination by providing written notice to the other party
of such party’s intent to terminate the Letter Agreement, as
amended (“Preliminary Termination Notice”); provided,
however that neither party shall initiate termination prior to
October 1, 2006. This termination provision only relates to
the Chapter 7 bankruptcy product of the parties, and will have no
effect on any other products, business or development that Bank of
America and EPIQ Systems may be promoting or conducting
together. The duration of the termination process will be
three (3) years following receipt of the Preliminary Termination
Notice (the “Disengagement Period”) and will be divided
into the following three phases.
[*Redacted
pursuant to a request for confidential treatment and filed
separately.*]
B.
Dissemination
of Information. During the Disengagement
Period, both parties will cooperate in the dissemination of
information regarding their relationship and will cooperate with
reasonable requests of the other party regarding public statements,
communications
