Exhibit 10.6
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked "[ *** ]", have been
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separately filed with the Securities and Exchange Commission.
LICENSE AGREEMENT #1020-0320-6-0001
CONTRACT MODIFICATION
---------------------
This Contract Modification is entered into on November 19, 1997, by and between
COLORADO BUSINESS BANK, N.A. (Licensee) and XXXX XXXXX & ASSOCIATES, INC. (XXX)
who mutually contract and agree as follows:
Licensee and XXX are signing and entering into multiple other written contracts
and agreements dated November 19, 1997. Certain of those contracts and
agreements are changed and modified as follows:
1. The "LICENSE AGREEMENT" is changed and modified as follows:
A. In Section "3. License.":
--------
a. Add a new subparagraph: "The Software will calculate and perform
prior to, during, and after the year 2000. XXX will guaranty
that all year 2000 testing on the Software will be completed and
any errors corrected by 12/31/98. XXX will also guaranty that an
independent third party review of the Software will be completed
by 12/31/98.".
b. To the fourth subparagraph add: "If, in the future, Licensee
acquires full ownership and control of another Bank and wants to
process that Bank's data on the Software, then (1) if that Bank
is merged into Licensee and operates under Licensee's original
charter, no additional license fee is owed to XXX, and (2) if
that Bank is operated under a charter other than Licensee's
original charter, an additional license fee will be owed to XXX."
B. In Section "4. Warranties.":
-----------
a. In the first sentence of the first subparagraph insert "and
subsequent updates thereto" immediately following "Software".
b. In the second sentence of the first subparagraph strike "sixty
(60)" and replace it with "(120)".
c. To the end of the third sentence add: "XXX warrants that (i) it
has full title and ownership of the Software; (ii) XXX has the
full power and authority
Contract Modification
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Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked "[ *** ]", have been
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separately filed with the Securities and Exchange Commission.
to grant the License granted by this Agreement to Licensee; (iii)
the licensing of the Software to Licensee under this Agreement
and use of Software by Licensee pursuant to this Agreement will
not constitute an infringement or other violation of any
copyright, trade secret, trademark, patent or any proprietary
rights of any third party.".
C. In Section "17. Assignability.":
--------------
a. To the end of the first subparagraph add: "In the event that
Licensee is acquired by a holding company or entity and the
acquiring entity or holding company wishes to convert Licensee to
another software package, XXX will continue to allow Licensee to
use this license for up to 180 days following the acquisition
provided that the acquiring entity or holding company promptly
signs and returns JHA's then current confidentiality agreement
and deconversion agreement.".
b. Add a new subparagraph "In the event that Licensee makes a public
offering, XXX shall not consider such public offer to constitute
an assignment as provided for above.".
D. In Section "19. Services.":
---------
a. "XXX warrants that any customized code hereafter requested or
authorized by Licensee with written detailed specifications and
accepted in writing by XXX will be customized and installed by
XXX on Licensee's computer, and will perform in accordance with
said written detailed specifications furnished by Licensee."
E. In Section "20 Installation.":
-------------
a. To the end of the first subparagraph add: "So long as Licensee
promptly pays the undisputed portion of any billing, said
interest will be paid only on the portion of the disputed billing
ultimately resolved in favor of XXX.".
2. The "EXHIBIT A" is changed and modified as follows:
A. Reform the payment terms as follows:
"Deposit at execution of Agreement [ *** ] ................... [ *** ]
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Due upon delivery of Software [ *** ] ........................ [ *** ]
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Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked "[ *** ]", have been
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separately filed with the Securities and Exchange Commission.
Due upon installation of last application, or 120 days after
delivery of the Software, whichever occurs first [ *** ] ..... [ *** ]
--- ---
B. Under "SERVICES PROVIDED:" add:
a. In Section "2." create an item "c)" as follows: "XXX will at the
time of conversion convert the data of the Colorado Business Bank
of Littleton and merge it into the data of the Colorado Business
Bank of Denver.".
b. Create a new item "d)" as follows: [ ***
---
]
c. Create a new item "e)" as follows: "XXX will use its best efforts
to provide Licensee with a live conversion date as of the end of
processing on June 11, 1998.".
3. The "COMPUTER SOFTWARE MAINTENANCE AGREEMENT" is changed and modified as
follows:
A. In Section "1. Maintenance and Support.":
------------------------
a. In item "(a)" add: "However, XXX will use due diligence to see
that its Software is kept in compliance with Federal and State
banking laws.".
b. To item "(b)" add: "Updates and enhancements to the base Software
which has been licensed by Licensee shall be performed at no
additional charge except for those amounts specified in "3.
Maintenance Fees.".
-----------------
c. To item "(c)" add: "XXX maintains an 800 toll free number for
customer support which is staffed twenty four (24) hours a day,
seven (7) days a week.".
d. To item "(d)" add: "Such corrections shall be made in a timely
manner and the speed of such corrections shall he directly
correlated to the severity of the presenting problem."
B. In Section "2. Exceptions to Maintenance & Support.":
------------------------------------
a. To item "(f)" add: "Except in the event that Licensee is
instructed by XXX technical support staff to use the Software or
modules thereto which were provided by XXX in an undocumented
manner.".
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b. Add a new item "(h)" as follows: "Nothing in this section shall
infringe upon the IBM warranty on Licensee's equipment.".
C. In Section "3. Maintenance Fees.":
-----------------
a. To item "(b)" add: "In the event that this Agreement is
terminated by XXX or by reason of any default other than the sale
of Licensee, XXX will refund the unused portion of the annual
advance fee for Maintenance.".
b. To item "(e)" add: "So long as Licensee promptly pays the
undisputed portion of any billing, said interest will be paid
only on the portion of the disputed billing ultimately resolved
in JHA's favor."
D. In Section "4. Term and Automatic Renewal.":
---------------------------
a. "XXX shall not increase the annual advance fee prior to June 30,
2000 unless Licensee acquires additional modules from XXX or
acquires the assets of another institution. If Licensee acquires
such assets, the maintenance fee will only be adjusted to reflect
the acquired assets."
4. The "AGREEMENT FOR PURCHASE OF MACHINES FROM XXXX XXXXX & ASSOCIATES, INC."
is changed and modified as follows:
A. Create a new Section titled "Miscellaneous":
. Once Customer has paid XXX in full for the purchase of the
equipment, XXX will transfer the warranty and documentation of
ownership on the equipment to Customer. XXX shall also convey the
Warranty of Good Title to Customer.
. Equipment is insured against loss up until the point of delivery
by manufacturer.
. In the Section titled "General":
. In the third subparagraph add: "In the next transaction between
XXX and Customer any changes to this Agreement will be required
to be signed by both Customer and XXX.".
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In witness whereof, the parties have caused this CONTRACT MODIFICATION to be
executed by their duly authorized representatives.
XXXX XXXXX & ASSOCIATES, INC. COLORADO BUSINESS BANK, N.A.
000 Xxxxxxx 00, X. X. Xxx 000 821 17/th/ Street
Monett, MO 65708 Xxxxxx, XX 00000
(XXX) (LICENSEE)
BY: /s/ Xxxxxxx X. Xxxxxxx BY: /s/ Xxxxxxx X. Xxxxxx
------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx
----------------------------------- ---------------------------------------
Type/Print Name Type/Print Name
TITLE: President/COO TITLE: SVP/CFO
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