EXHIBIT 10.41
FIFTH AMENDMENT TO
SERVICE BUREAU PROCESSING AGREEMENT
THIS FIFTH AMENDMENT TO SERVICE BUREAU PROCESSING AGREEMENT ("FIFTH AMENDMENT")
IS EFFECTIVE AS OF THE 19TH DAY OF JUNE 2004 ("FIFTH AMENDMENT EFFECTIVE DATE")
AND AMENDS AND SUPPLEMENTS THAT CERTAIN SERVICE BUREAU PROCESSING AGREEMENT
("AGREEMENT") DATED AUGUST 1, 1999, BETWEEN FIDELITY INFORMATION SERVICES, INC.,
WITH OFFICES LOCATED AT 000 XXXXX XXXX XXXXXXX XXXXX, XXXXX 000, XXXXXXXX,
XXXXXXX 00000 ("FIDELITY") AND HERITAGE OAKS BANK, 000 XXXXXXX XXXXXX, XXXX
XXXXXX, XXXXXXXXXX 00000 ("CLIENT").
WHEREAS, FIDELITY AND CLIENT WISH TO AMEND THE AGREEMENT TO ADD CERTAIN
PRODUCTS AND SERVICES AND TO EXTEND THE TERM OF THE AGREEMENT;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS
CONTAINED HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:
1. The first sentence of Section 11.1 of the Agreement is hereby deleted in
its entirety and is replaced with the following:
"This Agreement shall commence on the Effective Date hereof and shall
expire August 31, 2011 (hereinafter, the `Term'), unless terminated
pursuant to Paragraph 11.2 or 11.4. The last day of the Term shall be the
`Expiration Date.'"
2. The fees payable to Fidelity commencing on the Fifth Amendment Effective
Date and continuing for the duration of the Term shall be as set forth in
the Schedule of Fees for Contracted Services Heritage Oaks Bank Fifth
Amendment - Attachment 1 ("Attachment 1") which is attached hereto and made
a part hereof. Such fees are payable to Fidelity in accordance with Section
5 of the Agreement.
3. Furthermore, as of the Fifth Amendment Effective Date, Attachment 1 to this
Fifth Amendment shall supersede and replace the Schedule of Fees for
Contracted Services Heritage Oaks Bank Attachment 1 which was attached to
and made a part of the Agreement.
4. Pursuant to the terms and conditions of this Fifth Amendment, including
Exhibit 1 to this Fifth Amendment, and the terms and conditions set forth
in the Agreement, Fidelity hereby grants Client a perpetual, nonexclusive
and nontransferable right and license to use the Fidelity software products
listed on the page of Attachment 1 which is entitled Fidelity Product
Offerings (hereinafter, the "Licensed Software").
5. In addition to the Services described in the Agreement (as previously
amended), Fidelity shall provide the following additional services to
Client for the duration of the Term of the Agreement (the "Additional
Services").
5.1 Fidelity shall provide maintenance services for the Licensed Software
in accordance with the terms and conditions applicable to maintenance
services described in Exhibit 1 hereto. Fidelity will provide such
maintenance services for the duration of the Term specified in Section
11.1 of the Agreement (as such Section 11.1 is amended above).
5.2 Fidelity shall provide Client with access to and use of Internet
Banking in a hosted environment in accordance with the terms and
conditions set forth in Exhibit 2 to this Fifth Amendment. With
respect to the hosting services, Client acknowledges and agrees that:
(a) the cost of telecommunications connections related to Client's
use of Internet Banking is not included in the fees set forth in
Attachment 1; and
(b) any consumable supplies used by Client in connection with
Internet Banking shall be at Client's expense; and
(c) any hardware and additional networking costs necessary to utilize
Internet Banking shall be borne by Client.
5.3 Fidelity shall implement the Fidelity training bank for Client's use.
This training bank is a standalone bank that allows Client's employees
to train on the HORIZON Banking System as well as the licensed
Integrated Platform Solutions products and to test new functionality
delivered by Fidelity. As part of the Additional Services, Fidelity
will process the training bank nightly.
5.4 Fidelity shall assume responsibility for implementation of ACquire
updates and will migrate the ACquire software into Fidelity's HORIZON
Technology Center West data center for management and the running of
the ACquire software.
5.5 Fidelity shall assist Client in the conversion of Hacienda Bank to the
HORIZON Banking System in accordance with a conversion plan developed
by Fidelity. With respect to such conversion, Fidelity agrees to apply
a rebate to processing fees payable pursuant to this Fifth Amendment
in the amount of $25,000.00 per month for a period of eighteen (18)
months after the Fifth Amendment Effective Date to offset the ongoing
processing fees Client will pay Hacienda Bank's current processor.
5.6 Fidelity shall provide the Fidelity DASH ATM/EFT services that are
more particularly described in Exhibit 3 to this Fifth Amendment.
Fidelity will implement these services as part of the Hacienda Bank
conversion to the HORIZON Banking System. As of the conversion of
Hacienda Bank to the HORIZON Banking System only Hacienda Bank's
current ATM/EFT services will migrate to the Fidelity DASH ATM/EFT
services solution as defined in this Fifth Amendment. As of the Fifth
Amendment Effective Date, Client is under long term contract with
another ATM/EFT provider ("Current Processor"). Client's ATM/EFT
services will remain with Current Processor until a time mutually
agreed to by the Client and Fidelity but both parties have the full
intention of migrating these services at or prior to the expiration of
the term of the Current Processor agreement to the Fidelity DASH
ATM/EFT solution.
6. The fees and charges applicable to the Licensed Software and the Additional
Services are set forth in Attachment 1 to this Fifth Amendment. With
respect to such fees and charges the following terms shall be applicable.
6.1 Client shall pay Fidelity the one-time fees set forth in Attachment 1
to this Fifth Amendment as follows: fifty (50%) of such fees upon
execution of this Fifth Amendment; and the remaining fifty percent
(50%) of such fess as each item of the Licensed Software is installed
and available for use.
6.2 Client shall pay the recurring fees set forth in Attachment 1 as
invoiced by Fidelity. All of such recurring fees are subject to
adjustment annually pursuant to Section 5.2 of the Agreement.
7. The following provisions are hereby added to Section 11 of the Agreement.
"11.4 Termination for Acquisition. Client may terminate this
Agreement upon the occurrence of a `Merger Event' (as defined
below), provided that Client shall give Fidelity notice within
one hundred eighty (180) days after the occurrence of the
Merger Event, which provides at least one hundred eighty (180)
days' notice (`Early Termination Notice') setting out the date
of termination (`Early Termination Date') and accompanying
such Early Termination Notice, a fee (`Early Termination Fee')
which shall be computed as follows:
(a) The Early Termination Fee shall be equal to thirty-five percent
(35%) of the average monthly amount of the prior six (6) months
(excluding any one time rebates or credits) of the fees set forth
in Attachment 1, multiplied by the number of months between the
Early Termination Date and the Expiration Date, in addition to
the Termination Costs outlined below and the Deconversion Fees
listed in Exhibit C.
(b) For the purposes of this Section only, a `Merger Event' shall
mean the consummation of: (i) a merger, consolidation or other
business combination of Client (or its principal banking
subsidiary or subsidiaries) with any other entity, when such
entity has assets in equal to or greater than Client; or (ii) a
sale or disposition by Client (or its principal banking
subsidiary or subsidiaries) or all or substantially all of its
common equity or its assets. If the Merger Event does not
actually occur or is to be postponed indefinitely, for any reason
whatsoever, then Client may, prior to its Early Termination Date,
rescind the Early Termination Notice. If Client shall rescind the
Early Termination Notice, Fidelity shall extend to Client a
credit for the Early Termination Fee actually paid by Client.
Such credit shall be applied to the fees outlined in Attachment
1, as such fees become due hereunder. Such credit shall be
reduced by the amount of out-of-pocket expenditures actually
incurred by Fidelity, in preparation for the termination of this
Agreement, after the date of delivery of the Early Termination
Notice.
(c) In addition to the fees mentioned above in this Section, Client
shall reimburse Fidelity for the reasonable costs actually
incurred by Fidelity in terminating this Agreement prior to the
Expiration Date, including without limitation an amount equal to
any remaining book value of any equipment and unamortized
Software used to provide the Services under this Agreement;
expenses incurred, on behalf of Client, in canceling leases,
licenses, subcontractor or similar agreements, costs associated
with termination and/or relocation of dedicated resources
(`Termination Costs'). Fidelity shall use its reasonable best
efforts to minimize the Termination Costs.
(d) All known fees outlined in above are due and payable sixty (60)
days prior to termination of the Agreement. The described fees
are exclusive of any fees associated with Deconversion Fees
outlined in Exhibit C to the Agreement. Notwithstanding delivery
of an Early Termination Notice by Client or payment of an Early
Termination Fee by Client, Client shall continue to make all
payments due and payable to Fidelity pursuant to this Agreement
until the Early Termination Date."
8. If Client acquires another bank(s) during the Term (not including the
Hacienda Bank), Fidelity will provide conversion services for the acquired
bank at the hourly rate of $57.00, plus reasonable travel and living
expenses, provided that the scope of Services to be provided with respect
to the acquired bank is the same as the scope of Services then being
provided to Client pursuant to this Agreement. Client will notify Fidelity
of any such acquisition as soon as reasonably practicable.
9. All terms and conditions of the Agreement not amended by this Fifth
Amendment shall remain in full force and effect.
10. Except as herein expressly amended, the Agreement is ratified, confirmed
and remains unchanged in all respects and shall remain in full force and
effect in accordance with its respective terms.
11. This Fifth Amendment may be executed in counterparts, each of which shall
be an original, but such counterparts shall together constitute but one and
the same document.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS FIFTH AMENDMENT AS OF THE
FIFTH AMENDMENT EFFECTIVE DATE BY THEIR DULY AUTHORIZED REPRESENTATIVES.
Fidelity Information Services, Inc. Heritage Oaks Bank
By:_______________________________ By:__________________________
Name: Xxxx Xxxxxxxx Name:_____________________
Title: President, Integrated Title:____________________
Financial Solutions
Date:_____________________________ Date:________________________
