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EXHIBIT 10.1
DATA PROCESSING SERVICES AGREEMENT
THIS DATA PROCESSING SERVICES AGREEMENT is made as of this 6 day of
August, 1996, (the "Agreement") by and between M&I Data Services, a division of
the Marshall & Ilsley Corporation, a Wisconsin corporation ("M&I") and
California United Bank, a national banking association, together with its
subsidiaries and affiliates (collectively referred to as the "Customer").
RECITALS
WHEREAS, M&I provides data processing services to customers located
across the country; and
WHEREAS, M&I desires to provide data processing services to Customer,
and Customer desires to have M&I provide it with such services.
NOW, THEREFORE, in consideration of the recitals and for the good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. SERVICES. M&I shall provide Customer with the data processing
services requested by Customer utilizing the version of the banking system
software made available from time to time by M&I through the M&I Service Bureau
(the "Services"). The functionality of the software and a further description
of the Services is set forth in the User Manuals, copies of which will be
provided, or made available, to Customer. Customer shall purchase the data
processing services indicated on Exhibit A from M&I. Unless otherwise agreed
in writing between M&I and Customer, and subject to the other provisions of the
Agreement, M&I shall make the On-line Services available to Customer, subject
to normal downtime and maintenance, at times indicated on the M&I On-line
Availability Schedule, as modified from time to time.
2. FEES AND TAXES. Customer agrees to pay for the Services
received hereunder as follows:
a. Amount of Fees. Commencing on the Conversion Date
(as defined in Section 3) and on the last day of each month thereafter through
the end of the term of this Agreement, Customer shall pay M&I a fixed monthly
fee of forty-one thousand three hundred thirty-six dollars ($41,336) per month
(the "Fixed Monthly Fee") for the Services described on Exhibit A. For
Services requested by Customer in addition to those on Exhibit A or for usage
of Services on Exhibit A in excess of stated maximums, Customer shall pay in
accordance with M&I's then-current standard published prices discounted ten
percent (10%), except for ATM Services which shall be discounted twenty percent
(20%). The Fixed Monthly Fee will be adjusted in accordance with the
provisions of Exhibit B. Customer also agrees to pay all communication costs,
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telecommunication charges, printline charges and other output costs, start-up
fees, pass-through charges, out-of-pocket expenses, conversion expenses and
fees, workshop fees, training fees, and late fees or charges billed as
miscellaneous on Customer's invoice (the "Miscellaneous Fees"). The M&I
standard published prices as of the date of this Agreement are set forth on the
fee schedule attached as Exhibit A.
b. Additional Charges. In addition to the charges
described above or set forth in Exhibit A, Customer agrees to pay for any
manufacturers, sales, use, excise, personal property, or any other tax or
charge, or duty or assessment levied or assessed by any governmental authority
upon or as a result of the execution or performance of any service pursuant to
this Agreement or materials furnished with respect to the Agreement, except
those taxes based on M&I's net income. In no event shall Customer be liable
for payment of any tax based on M&I's real estate or equipment.
c. Terms of Payment. Customer shall pay the Fixed
Monthly Fee on the last day of the month in which the Services are to be
performed. Any other amounts due hereunder shall be paid within thirty (30)
days of invoice, unless otherwise provided herein. To effect the payment of
the Fixed Monthly Fee, Customer hereby authorizes M&I to initiate debit entries
from and, if necessary, initiate credit entries and adjustments to Customer's
account at the depository designated in the ACH Authorization Agreement. Debit
entries for the Fixed Monthly Fee will be made on the last day of each month
for which Services will be rendered under the Agreement. In the event that a
payment day is a nonbusiness day, entries will be made on the first preceding
business day. Customer shall authorize, on the attached ACH Authorization
Agreement, debits from and credits to its account for payment for Services
received under the Agreement. The Customer shall also pay any collection fees
and reasonable attorneys' fees incurred by M&I in collecting payment of the
charges and any other amounts for which Customer is liable under the terms and
conditions of this Agreement, except for amounts disputed in good faith in
accordance with the provisions of the following paragraph.
Should Customer reasonably and in good faith dispute any fees
so billed, Customer may withhold payment for the disputed amount provided
Customer notifies M&I of such disagreements or objections within the prescribed
thirty (30) day period; however, the Fixed Monthly Fee and any undisputed
amounts shall be promptly paid as described above. The parties agree to
promptly attempt to resolve the dispute, and further agree if the disputed
invoice is not resolved within sixty (60) days of the invoice date, the chief
executive officers of the parties shall meet to resolve the dispute..
d. Modification of Terms and Pricing. If Customer is in
default and M&I elects to continue to perform the Services, Customer agrees to
pay M&I all unamortized conversion expenses in advance of M&I performing any
additional Services. As of the date of the Agreement, unamortized conversion
expenses equals four hundred twelve thousand seven hundred eighty dollars
($412,780). Amortization shall be on a straight line basis over sixty (60)
months. In addition, Customer agrees that all charges for Services shall be
computed using M&I's then-current standard published prices, paid in advance as
determined by M&I. At M&I's option, such Services shall be provided on a
month-to- month basis. Following Customer's cure of such default, the pricing
structure shall revert to that in place prior to such default.
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3. TERM.
a. Initial Term. This Agreement shall be effective upon
execution by both parties, and both parties will promptly undertake the
conversion activities necessary to process Customer's data. Subject to
Customer's timely and satisfactory completion of its responsibilities described
in the M&I Conversion Manual and in the Conversion Schedule to be established
by M&I and Customer, all conversion activities will be completed on December 2,
1996, (the "Conversion Date"). The term of this Agreement shall continue for a
period of seventy- two (72) months from the Conversion Date.
b. Renewal Obligations. During any automatic renewal
term as provided for in Section 13, or for any Services provided after the end
of the initial term, whether or not the Agreement is renewed, Customer agrees
that the terms of this Agreement shall continue to apply, except that all
charges for Services shall be computed using M&I's then-current standard
published prices paid in advance as determined by M&I. At M&I's option, such
Services shall be provided by M&I on a month-to-month basis.
4. AFFILIATES. All processing for Customer and Customer's
subsidiaries and affiliates which M&I does shall be included as part of the
Services provided under this Agreement and shall be done in accordance with the
terms and conditions of this Agreement. Customer agrees that it is responsible
for assuring compliance with the Agreement by its affiliates and subsidiaries.
Customer agrees to be responsible for the submission of its affiliates' data to
M&I for processing and for the transmission to Customer's affiliates of such
data processed by and received from M&I. Customer agrees to be responsible for
any and all fees owed under this Agreement for Services hereunder.
5. CONFIDENTIALITY AND OWNERSHIP. Both parties will, to the
extent and in accordance with their policies used to protect their own
information of similar importance, use their best efforts to refrain from and
prevent the use of or disclosure of any confidential information of the other
party, disclosed or obtained by such party while performing its obligations
under this Agreement, except when such use or disclosure is for the purpose of
providing the Services. Neither party will have an obligation of
confidentiality with regard to any information insofar as the same: (1) was
known to such party prior to disclosure; (2) is or becomes publicly available
other than as a result of a breach of this Agreement; or (3) is disclosed to
such party by a third party not subject to an obligation of confidentiality.
Nor shall the obligation of confidentiality occur where disclosure is made
pursuant to: (1) any law of the United States or any state thereof; (2) the
order of any court or governmental agency; or (3) the rules and regulations of
any governmental agency.
Customer may reproduce and distribute any or all M&I's
documentation, including User Manuals, solely for its own internal use.
Customer recognizes, however, that such documentation may be copyrighted,
trademarked, patented, or otherwise protected by M&I. Customer will not
undertake to reproduce for distribution or distribute such documentation to any
other third party. Any modifications made to such documentation by Customer
for the purpose of customization are acknowledged to be solely at the risk of
Customer, and M&I shall not be liable to Customer for any inaccuracies arising
therefrom. The distribution of modified documentation is subject to
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the same restrictions and shall further contain an acknowledgement of M&I's
copyright and other protected proprietary interests in such documentation.
6. PROGRAMMING. M&I reserves the right to determine the
programming (whether hardware or software) utilized with the equipment used in
fulfilling its duties under this Agreement. All programs (including ideas and
know-how and concepts) developed by M&I are and remain its sole property.
7. EQUIPMENT. Customer shall obtain and maintain at its own
expense such data processing and communications equipment as may be necessary
or appropriate to facilitate the Customer's proper use and receipt of the
Services. Customer shall pay all installation, monthly, and other charges
relating to the installation and use of communications lines in connection with
the Services. M&I shall not be responsible for the continued availability of
the communications lines used by Customer in accessing the Services. M&I will
review the proposed network configuration (attached hereto as Exhibit D) to
insure its adequacy based on information provided by Customer, as of the date
of the Agreement for Customer's proper use and receipt of the Services. M&I
will monitor the communications lines used to access the Services for the
purpose of informing Customer or Customer's communications vendor of any
problems with such lines.
8. SUPPLIES. Customer shall pay for all supplies used in
connection with the Services. All forms, supplies, or materials used in
processing Customer's items and input data shall meet M&I's specifications.
9. SYSTEMS MODIFICATION; AMENDMENT OF SERVICES. M&I may modify,
amend, enhance, update, or provide the appropriate replacement for any of the
Services, the software used to provide the Services, or any element of its
systems at any time to: (a) improve the Services or (b) facilitate the
continued economic provisions of the Service. M&I may, at any time, withdraw
any of the Services upon providing two hundred seventy (270) days' prior
written notice to Customer. Either party may also terminate any of the
Services immediately upon any regulatory, legislative, or judicial
determination that providing such Services is inconsistent with applicable law
or regulation or upon imposition by any such authority of restrictions or
conditions which would detract from the economic or other benefits to M&I or
Customer to any element of the Services. In the event of the termination or
withdrawal of a Service, Customer shall not suffer any material diminution in
the functionality of the core elements of M&I's Integrated Banking System
software (Deposit System, Loan System, Customer Information System).
10. DISASTER RECOVERY. M&I maintains, and shall continue to
maintain throughout the term of this Agreement, off-site disaster recovery
capabilities which permit M&I to recover from a disaster and continue providing
Services to Customers within a commercially reasonable period. An executive
summary of the current disaster recovery plan, which may change from time to
time, is available upon request from M&I at no charge. M&I shall test the
operation and effectiveness of its disaster recovery plan at least annually.
M&I maintains, and shall continue to maintain throughout the term of this
Agreement, a backup power supply system to guard against electrical outages.
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11. EVENTS OF DEFAULT. It shall be an Event of Default on the
part of the Customer if: (a) Customer is insolvent, or a receiver or
conservator shall be appointed with respect to the Customer; or (b) Customer
shall fail to pay any sum due M&I within the prescribed time except for any
sums disputed in good faith as provided for in Section 2(c); or (c) if the
Customer shall fail to perform any of its other covenants or obligations under
this Agreement where such failure to perform has a material adverse impact on
M&I. It shall be an Event of Default on the part of M&I if M&I shall fail to
perform any of its obligations under this Agreement where the failure of M&I to
perform has a material adverse impact on Customer and is material to the
provision of the Services. The defaulting party shall have ten (10) days from
the date of receipt of notice from the nondefaulting party of nonpayment or
nonperformance to cure such an Event of Default, before the nondefaulting party
may exercise any remedies it may have as a result of the Event of Default.
12. REMEDIES UPON DEFAULT; LIMITATION OF LIABILITIES. If an Event
of Default occurs on the part of the Customer, and is not cured within the ten
(10) day period prescribed in Section 11, M&I may (a) terminate this Agreement;
(b) terminate access to its central processing unit by the Customer; and (c)
declare all amounts payable under this Agreement to be immediately due payable
and file suit for or otherwise obtain payment from the Customer of any fees or
other sums due it pursuant to this Agreement, plus any actual damages to its
equipment or systems caused by the Customer's actions, failures to act,
equipment, systems, or communication facilities. If an Event of Default occurs
on the part of M&I, and is not cured within the ten (10) day period prescribed
in Section 11, the Customer may only: (a) terminate this Agreement without
payment of any buyout amount, deconversion expense, or penalty of any kind and
(b) file suit or otherwise obtain payment of an aggregate amount of fees paid by
the Customer to M&I hereunder during the six (6) months immediately preceding
the Event of Default plus any reasonable attorney's fees incurred as a result of
any action taken to collect such fees. Either party may also seek equitable
remedies, including, without limitation, specific performance and injunctive
relief, for a breach of Section 5 of this Agreement. M&I and the Customer agree
that these damage provisions are reasonable in light of all present predictable
circumstances (including expectable actual damages in that the fees to be
charged by M&I hereunder do not include amounts sufficient to insure against
greater claims). M&I and Customer expressly waive all claims for additional,
incidental, consequential, compensatory, or punitive damages and agree that the
remedies set forth in this Agreement shall be the sole and exclusive remedies of
the parties. No lawsuit or other action may be brought by either party hereto
or on any claim or controversy based upon or arising in any way out of this
Agreement after one (1) year from the date of the discovery of the occurrence
allegedly giving rise to the action. M&I agrees that except in the case of an
Event of Default relating to a breach by the Customer of its confidentiality
obligations under Section 5 of this Agreement, M&I will not exercise its remedy
to terminate Customer's access to the M&I central processing unit so long as:
(a) Customer is current in the payment of all amounts due M&I as reflected on
M&I's last invoice to Customer; and (b) only exercise such remedy after
providing Customer with sixty (60) days' prior written notice.
13. TERMINATION.
a. End of Initial Term. This Agreement shall automatically be
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extended at the end of the initial seventy-two (72) month term for an
additional twelve (12) month renewal term, unless the Customer gives M&I at
least one hundred eighty (180) days' prior written notice of its intent to
terminate, which notice may be given during the initial term of the Agreement.
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b. Renewal Term. During the renewal term, this
Agreement shall be automatically extended for an additional one (1) month on
each monthly anniversary date so that the term shall always be not less than
one (1) month less than twelve (12) months, unless either party gives written
notice to the other party of intent to terminate, in which event the automatic
monthly renewals will end and the Agreement will terminate at the end of the
unexpired portion of the term in existence on the date notice to terminate is
given.
c. Termination Upon Default. This Agreement may also
terminate upon an Event of Default and failure to cure beyond applicable cure
periods at the option of the nondefaulting party as set forth in Section 12
hereof.
d. Termination by Customer. Customer may terminate this
Agreement at any time, and without cause, by giving M&I at least one hundred
eighty (180) days' prior written notice and paying M&I the then-applicable
buyout amount set forth in Section 21.
e. Termination for Acquisition Event of Customer. As
used herein, an "Acquisition Event" means any of the following events:
i. any person shall have completed a tender offer or
exchange offer to purchase any shares of Common Stock of the Customer's parent,
such that, upon consummation, such person would own or control fifty percent
(50%) or more of the then outstanding Common Stock of such parent or have the
ability to elect at least fifty percent (50%) of the directors of Customer's
parent; or
ii. any person shall have acquired beneficial ownership
(such term is defined in Rule 13d-3 under the Exchange Act) or the right to
acquire beneficial ownership of, or any "group" (as such term is defined in the
Exchange Act) shall have been formed which beneficially owns or has the right
to acquire beneficial ownership of, fifty percent (50%) or more of the then
outstanding Common Stock;
As used in this Agreement, "person" shall have the meaning
specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
14. REGULATORY ASSURANCES. M&I and Customer acknowledge and agree that
the performance of these Services will be subject to regulation and examination
by Customer's regulatory agencies to the same extent as if such Services were
being performed by Customer. Upon request, M&I agrees to provide any
appropriate assurances to such agency and agrees to subject itself to any
required examination or regulation. Customer agrees to reimburse M&I for
reasonable costs actually incurred due to any such examination or regulation
that is performed solely for the purpose of examining data processing services
used by Customer.
a. Notice Requirements. The Customer shall be
responsible for complying with all regulatory notice provisions to any
applicable governmental agency, which shall include providing timely and
adequate notice to the Chief Examiner of the Federal Home Loan Bank Board, the
Office of Thrift Supervision, the Office of the Comptroller of the Currency,
The Federal Deposit Insurance Corporation, the Federal Reserve Board, or their
successors, as applicable (collectively, the "Federal Agency"),
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as of the effective date of Services under this Agreement, identifying those
records to which this Agreement shall apply and the location at which such
Services are to be performed.
b. Examination of Records. The parties agree that the
records maintained and produced under this Agreement shall, at all times, be
available for examination and audit by governmental agencies having
jurisdiction over the Customer's business, including (without limitation) the
Federal Agency. The Director of Examinations of the Federal Agency or his
designated representative shall have the right to ask for and to receive
directly from M&I any reports, summaries, or information contained in or
derived from data in the possession of M&I related to the Customer. M&I shall
notify Customer as soon as possible of any formal request by an authorized
governmental agency to examine Customer's records maintained by M&I, if M&I is
permitted to make such a disclosure to Customer under applicable law or
regulations. Customer agrees that M&I is authorized to provide all such
described records when formally required to do so by this authorized
governmental agency.
c. Fidelity Bonds. Throughout the term of the
Agreement, M&I shall maintain fidelity bond coverage for M&I and its employees
in amounts reasonable for providers of data processing services similar to the
Services.
d. Notice of Changes. Customer shall give to the
Director of Examinations of the Federal Agency at least thirty (30) days'
notice of the termination of this Agreement or of any material changes in the
Services to be provided hereunder.
e. Insurance. Throughout the term of this Agreement,
M&I shall maintain insurance coverage (or shall be self-insured) in amounts
reasonable for providers of data processing services similar to the Services
for losses from fire, disaster, and other causes contributing to interruption
of the Services. The proceeds of such insurance shall be payable to M&I.
Nothing in this Agreement shall be construed as to permit Customer to receive
any of such proceeds, or to be named as an additional loss payee under any
insurance policy.
f. Financial Information. Upon request, Customer agrees
to provide M&I with financial information as M&I may reasonably request.
15. TRANSPORTATION AND/OR TRANSMISSION OF DATA. The responsibility and
expense for transportation and/or transmission of and risk of loss of data and
media to and from M&I's datacenters shall be borne by Customer. M&I will
notify Customer of the time by which Customer's data and media must be
delivered to M&I for processing for M&I to provide Customer's processed data
within the time period agreed to by the parties.
16. RESPONSIBILITY.
a. General. M&I agrees to perform the Services in a
commercially reasonable manner, which is similar to the services provided to
other M&I customers including member banks of the Marshall and Ilsley
Corporation, and no other or higher degree of care. Except as otherwise
described herein, M&I assumes no other obligation as to performance or quality
of the Services provided, all other risks of error
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being expressly assumed by Customer. M&I shall not be responsible for loss or
damage due to delays in processing or in the delivery of processed data as a
result of any of the causes excused by Section 19 hereof. M&I WILL IN NO EVENT
BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCURRED BY
CUSTOMER INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR BUSINESS OPERATION
LOSS, REGARDLESS OF WHETHER M&I WAS ADVISED OF THE POSSIBLE OCCURRENCE OF SUCH
DAMAGES.
b. Reliance on Data Supplied. M&I will process items
and data and perform those Services described in this Agreement on the basis of
information furnished by Customer. M&I shall be entitled to rely upon any such
data, information, or instructions as provided by Customer. If any error
results from incorrect input supplied by Customer, Customer shall be
responsible for discovering and reporting such error and supplying the data
necessary to correct such error to M&I for processing at the earliest possible
time. Customer will indemnify and hold M&I harmless from any cost, claim,
damage, or liability (including attorneys' fees) whatsoever arising out of such
data, information or instructions, or any inaccuracy or inadequacy therein.
Customer assumes all risk of loss, delay, and miscommunication in the
transportation or transmission by electronic means of data and information from
any terminal or remote unit unless the same is caused by or attributable to any
act or omission on M&I's part, which act or omission does not meet the standard
of care in Section 16(a), or was caused by or attributable to any gross
negligence or willful failure on M&I's part to comply with its obligations
under this Agreement.
c. Data Backup. Customer shall maintain adequate
records in accordance with prudent banking practice from which reconstruction
of lost or damaged items or data can be made. Customer assumes all
responsibility and liability for any loss or damage resulting from failure to
maintain such records.
d. Audit. M&I shall cause a third-party review of its
data processing systems and Services to be conducted annually by its
independent auditors. M&I shall provide Customer one copy of the report
resulting from such review.
e. Regulatory Compliance. Customer is responsible for
determining that the Services performed on its behalf, any forms which are used
with its customers, and all records it retains, comply with all applicable
laws. When used properly by Customer, M&I's systems and software used to
provide the Services will provide Customer with information necessary to comply
with Federal law applicable to the transactions or accounts processed by M&I.
Should Customer need information from the Services M&I provides in order to
comply with applicable state laws and regulations, Customer's sole remedy, and
M&I's sole obligation shall be for M&I to provide the ability to process the
information requested from the Customer as promptly as is commercially
practicable. M&I agrees that with respect to changes required as a result of
changes in state law, such changes shall be undertaken as a priority project
based on the regulatory deadline imposed for compliance.
f. Balancing and Controls. On a daily basis, Customer
shall review all input and output, controls, reports, and documentation, to
ensure the integrity of data processed by M&I. In addition, Customer shall, on
a daily basis, check exception reports to verify that all file maintenance
entries and nondollar transactions were
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correctly entered. Customer is responsible for initiating timely remedial
action to correct any improperly processed data which these reviews would
disclose.
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g. Service Deficiencies. If Customer is aware that a
defect exists in a Service, Customer shall be responsible for making whatever
appropriate adjustments may thereafter be necessary until M&I corrects the
defect and, if requested by Customer, M&I will, at M&I's expense, assist
Customer in making such corrections through the most cost-effective means,
whether manual, by system reruns, or program modifications. M&I will, where
reasonable, make every effort to correct any known material defect as soon as
commercially reasonable at M&I's expense. In the event M&I becomes aware of
any defect in a Service, M&I will promptly notify Customer.
17. OWNERSHIP OF DATA. Customer is the owner of all of its data supplied
by Customer to M&I for processing hereunder. Customer acknowledges that it has
no rights in any of the software, systems documentation, guidelines,
procedures, and similar related materials or any modifications thereof except
with respect to M&I's use of the same during the term of this Agreement to
process data. Upon termination of this Agreement, M&I shall provide Customer
with all copies of Customer's data in a format that is being used by M&I at
that time for processing such data. Prior to the release of the Customer's
data: (a) all amounts owed under this Agreement by Customer to M&I shall be
current and paid in full except for any disputed sums as provided for in
Section 2(c), and (b) Customer shall pay M&I its "Estimated Deconversion
Expenses" as described below. Customer agrees to pay M&I for M&I's work in
providing such data at M&I's rates then in effect for computer and personnel
time, supplies, and other items as required, and Customer further agrees to pay
M&I for any and all charges associated with the deconversion of Customer's data
based on M&I's then-current charges for such Services. M&I shall make a good
faith estimate of all of such costs, expenses, and charges which shall be paid
by Customer in advance (the "Estimated Deconversion Expenses"). The
difference, if any, between the actual expenses and the prepaid Estimated
Deconversion Expenses shall be promptly paid or refunded, as appropriate, after
determination.
18. WARRANTIES. M&I represents and warrants that:
a. Capability of Computer Systems and Software. M&I's
computer systems (hardware and software) are capable of performing the Services
in accordance with the provisions of this Agreement. The software used to
provide the Services will operate substantially in accordance with the
specifications and documentation for the software as modified from time to time
to incorporate enhancements or modifications of the software to provide the
Services.
b. Quality of Service. The reports and Services made
available to Customer shall be in substantial conformity with the User Manuals,
as amended from time to time, copies of which have been, or will be, provided
to Customer.
c. Property Rights. M&I has the right to provide the
Services hereunder, using all computer software required for that purpose.
d. Organization and Approvals. M&I is a validly
organized corporate entity with valid authority to enter into this Agreement.
This Agreement has been duly authorized by all necessary corporate action.
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e. Disclaimer of Warranties. EXCEPT AS DESCRIBED IN
THIS AGREEMENT, M&I DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL,
EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
19. FORCE MAJEURE. M&I shall not be liable to Customer if M&I's
fulfillment or performance of any terms or provisions of this Agreement is
delayed or prevented by revolution or other civil disorders, wars, acts of
enemies, strikes, electrical equipment or availability failure, labor disputes,
fires, floods, acts of God, federal, state, or municipal action, statute,
ordinance or regulation, or, without limiting the foregoing, any other causes
not within its reasonable control, and which by the exercise of reasonable
diligence it is unable to prevent, whether of the class of causes hereinbefore
enumerated or not.
20. IRS FILING. Customer has complied with all laws, regulations,
procedures, and requirements in attempting to secure correct tax identification
numbers (TINs) for Customer's payees and agrees to attest to this compliance by
an affidavit provided annually. Customer authorizes M&I to act as Customer's
agent and sign on Customer's behalf the Affidavit required by the Internal
Revenue Service on Form 4804, or any successor form.
Customer acknowledges that M&I's execution of the Form 4804 Affidavit
on Customer's behalf does not relieve Customer of responsibility to provide
accurate TINs or liability for any penalties which may be assessed for failure
to comply with TIN requirements. Customer agrees to hold M&I harmless from any
liabilities, claims, expenses, penalties, or damages (including attorneys'
fees) which may be assessed or incurred as a result of the failure to comply
with TIN requirements.
21. CONTRACT BUYOUT.
a. Customer may terminate this Agreement in accordance
with the provisions of Section 13(d) at any time by giving M&I at least one
hundred eighty (180) days' prior written notice and paying M&I fifty percent
(50%) of the total estimated remaining unpaid monthly processing fees, plus any
unamortized conversion expenses. For the purpose of this computation, total
estimated remaining unpaid monthly processing fees shall be equal to the mean
average of the total monthly fees paid in the three (3) months preceding the
termination notice, multiplied by the number of months remaining in the
Agreement.
b. Customer may terminate this Agreement in accordance
with the special provisions of Section 13(e) by giving M&I at least one hundred
eighty (180) days' prior written notice and paying M&I a percentage of the
total estimated remaining unpaid monthly processing fees [calculated as above
in Section 21(a)] according to the Schedule which follows:
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If Termination Occurs In Buyout Percentage
Months 1-36 35%
Month 37 or thereafter 40%
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22. EXPENSE REIMBURSEMENTS. Customer agrees to reimburse M&I for the
conversion-related and out-of-pocket expenses (travel, lodging, meals, long
distance telephone calls, and printing and copying charges) reasonably incurred
in connection with the conversion of Customer's accounts to the M&I system as
further described on Exhibit B. The reimbursement of such expenses is in
addition to conversion charges which may arise after the conversion, or with
respect to accounts which are not currently customer accounts which are to be
converted to the M&I system. M&I shall estimate such expenses in advance, and
Customer shall pay such expenses upon execution of this Agreement. M&I shall
provide Customer with a summary invoice of actual expenses, and any adjustments
shall be paid or refunded, as appropriate, upon delivery of the invoice.
23. CONVERSION OBLIGATIONS. Both parties agree to make a good faith
effort to convert Customer's data in a timely fashion and to perform the
conversion in accordance with the responsibilities set forth in the M&I
Conversion Manual, the Conversion Schedule, and this Agreement. Customer
agrees to maintain an adequate staff of persons who are knowledgeable with the
systems currently used by Customer to process data. Customer further agrees to
provide such Services and perform such obligations as are contemplated by the
M&I Conversion Manual and the Conversion Schedule, and as necessary for
Customer to timely and adequately perform its obligations herein and therein.
Customer shall pay or reimburse M&I for all out-of-pocket expenses and on a
time-and-materials basis for any of its personnel, or any independent
contractors, who perform conversion or related services identified as Customer
Responsibilities in the Conversion Manual. Customer and M&I further agree to
cooperate fully with all reasonable requests necessary to effect the conversion
in a timely and efficient manner. Customer agrees to reimburse M&I for all
conversion charges whether for the initial conversion, or for the subsequent
conversion of additional accounts as they are incurred or for the conversion of
products not identified in the Proposal.
24. USE OF THE SERVICES. (a) Customer assumes exclusive responsibility
for the consequences of any instructions Customer may give M&I, for Customer's
failure to properly access the Services in the manner prescribed by M&I, and
for Customer's failure to supply accurate input information; (b) Customer
agrees that it will use the Services in accordance with such reasonable
policies as may be established by M&I from time to time as set forth in any
materials furnished by M&I to Customer; (c) Customer agrees that, except as
otherwise permitted by M&I, Customer will use the Services only for its own
internal business purposes and will not sell or otherwise provide, directly or
indirectly, any of the Services or any portion thereof to any third party; and
(d) Customer agrees and represents to the best of its knowledge that (1) this
Agreement has been approved by its board of directors, or that the officer
executing this Agreement has been specifically authorized by Customer's board
of directors to execute this Agreement, (2) the performance of this Agreement
by the Customer will not affect the safety or soundness of the Customer or any
of its affiliates, and (3) this Agreement, and the obligations evidenced
hereby, will be properly reflected on the books and records of the Customer.
25. FINDERS FEES.
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If Customer introduces a lead to M&I, which M&I was not previously
working, and Customer assists M&I by introducing the prospect to M&I, followed
by Customer assistance and involvement in the selling process (not limited to
Customer site visits, referrals, presentations, etc.) for the purpose of
selling M&I Services, and the financial institution signs a processing
agreement with M&I, M&I will credit Customer an amount equal to one (1) month's
processing fees, which may be used to offset data processing fees for Services
(excluding Miscellaneous Fees) provided M&I agrees in advance to pay such
compensation to Customer. The finder's fee, as described above, shall be based
upon and payable after the first month's use of the ordinary Services following
the completion of all conversions of the new financial institution as proposed.
The credit shall not exceed fifty thousand dollars ($50,000) for any individual
bank, or more than fifty thousand dollars ($50,000) for any group of banks or
bank holding company.
26. MISCELLANEOUS.
a. Governing Law. This Agreement shall be construed and
governed by the laws of the state of Wisconsin.
b. Amendment. This Agreement, including the Schedules
hereto, may be amended only by an instrument in writing executed by the parties
or their permitted assignees.
c. Assignment. This Agreement may not be assigned by
either party without the prior written consent of the other party, which such
consent shall not be unreasonably withheld, provided that M&I may freely assign
this Agreement to any company that is directly or indirectly (1) in control of
M&I, (2) under the control of M&I, or (3) under common control with M&I.
d. Section Headings. Section headings are for reference
purposes only and shall not affect the interpretation or meaning of this
Agreement.
e. Notices. All communications or notices required or
permitted by this Agreement shall be in writing and may be given by personal
delivery or by mailing (in a postpaid, certified or registered wrapper), or by
depositing the same with Federal Express or a similar recognized courier
service (all charges prepaid), or by telex or telecopier provided a
confirmation copy is also sent by one of the other approved methods, addressed
as follows (or as subsequently designated in writing):
To M&I: M&I Data Services
4900 West Brown Deer Road
P.O. Box 23528
Brown Deer, WI 53223-0528
Attention: Patrick C. Foy, President
Outsourcing Business Group
FAX number: (414) 357-9797
To CUB: California United Bank, N.A.
16030 Ventura Boulevard
Encino, CA 91436
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Attention: Patrick Hartman, Chief Financial Officer
FAX number: (818) 907-5008
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With a mandatory copy to:
California United Bank, N.A.
16030 Ventura Boulevard
Encino, CA 91436
Attention: Anita Y. Wolman, Esq.,
General Counsel
FAX number: (818) 907-5024
The date of giving such notice shall be deemed the earliest of the
following: (i) the date of actual receipt, (ii) three (3) business days after
the date of deposit in the United States mail, (iii) two (2) business days
after the date of deposit with Federal Express or another courier service, or
(iv) the date of personal or telecopy delivery.
f. No Waiver of Performance. Failure by either party at
any time to require performance by the other party to claim a breach of any
provision of this Agreement will not be construed as a waiver of any right
accruing under this Agreement, nor affect any subsequent breach, nor affect the
effectiveness of this Agreement or any part hereof, nor prejudice either party
as regards any subsequent action.
g. Entire Agreement; Conflicting Provisions. This
Agreement, together with the Schedules hereto, constitutes the entire agreement
between the Customer and M&I with respect to the subject matter hereof. There
are no restrictions, promises, warranties, covenants, or undertakings other
than those expressly set forth herein and therein. This Agreement supersedes
all prior negotiations, agreements, and undertakings between the parties with
respect to such subject matter. In the event of any conflict between the terms
of the main body of this Agreement and any of the Schedules hereto, the terms
of the Schedules to this Agreement shall govern.
h. Execution in Counterparts. This Agreement may be
executed simultaneously in any number of counterparts, each of which shall be
deemed an original but all of which shall together constitute one and the same
Agreement.
i. Enforceability. The invalidity or enforceability of
any provision hereof shall not affect or impair any other provisions.
j. Scope of Agreement. If the scope of any of the
provisions of the Agreement is unenforceable or too broad in any respect
whatsoever to permit enforcement to its full extent, then such provisions shall
be enforced to the maximum extent permitted by law and the parties hereto
consent and agree that such scope may be judicially modified accordingly and
that the whole of such provisions of this Agreement shall not thereby fail, but
that the scope of such provisions shall be curtailed only to the extent
necessary to conform to law.
k. Confidentiality of Terms. Customer agrees that
neither it, its directors, officers, employees, or agents will disclose this
Agreement, or any of the terms or provisions of this Agreement, to any other
party.
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l. Regulatory Approval. In the event Customer fails to
obtain regulatory approval for the acquisition/merger of Home Bank by October
1, 1996, this Agreement shall be null and void ab initio, and, except for
Customer's obligation to pay for Services rendered by M&I, neither party shall
have further liability to the other hereunder.
m. Issues List. A listing of the issues that have been
or will be resolved during the conversion process is attached hereto as Exhibit
C.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in their names as of the date first above written.
M&I DATA SERVICES, A DIVISION OF THE
MARSHALL & ILSLEY CORPORATION ("M&I")
4900 W. Brown Deer Road
Brown Deer, WI 53223
By: ____________________________________
Name: Patrick C. Foy
Title: President, Outsourcing Business Group
By: ____________________________________
Name: Thomas R. Mezera
Title: Vice President
CALIFORNIA UNITED BANK, A NATIONAL
BANKING ASSOCIATION ("CUSTOMER")
16030 Ventura Boulevard
Encino, CA 91436-4487
By: _________________________________
Name: _________________________________
Title: _________________________________
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AUTHORIZATION AGREEMENT
The undersigned ("Customer") hereby authorizes M&I Data Services, a
division of the Marshall & Ilsley Corporation ("M&I") to initiate debit entries
and to initiate, if necessary, credit entries and adjustments for any excess
debit entries or debit entries made in error, to Customer's account indicated
below and the depository named below, to debit and/or credit the same such
account.
This authority is to remain in full force and effect for the period
coinciding with the term (and any renewals thereof) of the Data Processing
Services Agreement made the _______________ day of August, 1996, and any addenda
thereto (the "Agreement"), pursuant to the terms and conditions specified in the
Agreement.
DEPOSITORY NAME: ________________________________
ADDRESS: ________________________________
CITY/STATE/ZIP: ________________________________
TELEPHONE NUMBER: ________________________________
ROUTING TRANSIT NUMBER: ________________________________
ACCOUNT NUMBER: ________________________________
M&I DATA SERVICES, A DIVISION OF THE
MARSHALL & ILSLEY CORPORATION ("M&I")
By: ____________________________________
Name: Patrick C. Foy
Title: President, Outsourcing
Business Group
By: ____________________________________
Name: Thomas R. Mezera
Title: Vice President
CALIFORNIA UNITED BANK, A NATIONAL
BANKING ASSOCIATION ("CUSTOMER")
By: ____________________________________
Name: _________________________________
Title: _________________________________
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ATTORNEY-IN-FACT APPOINTMENT
Customer hereby appoints M&I Data Services, a division of the Marshall &
Ilsley Corporation ("M&I") as: (1) customer's attorney-in-fact and empowers
M&I to authorize the Internal Revenue Service (IRS) to release information
return documents supplied to the IRS by M&I to states which participate in the
"Combined Federal/State Program"; and (2) Customer's agent to sign on
Customer's behalf the Affidavit required by the Internal Revenue Service on
Form 4804, or any successor form. Customer agrees to hold M&I harmless from
any liabilities, claims, expenses, penalties, or damages (including attorneys'
fees) which may be assessed or incurred as a result of the release of
information.
CALIFORNIA UNITED BANK, A NATIONAL
BANKING ASSOCIATION ("CUSTOMER")
By:_____________________________________
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AFFIDAVIT
STATE OF __________________)
) SS.
COUNTY OF _________________)
I, __________________________________________________________________, being
first duly sworn, on oath, depose
Customer's Representative
and say:
1. I am an employee of California United Bank, a national banking
association. I have personal knowledge of my employer's practices with regard
to procuring and reporting tax identification numbers (TINs) and authority to
execute this Affidavit on my employer's behalf.
2. California United Bank, a national banking association, has
complied with all laws, regulations, procedures, and requirements in attempting
to secure correct TINs for its payees. This compliance has been pursued with
due diligence, and any failure to secure correct TINs is due to reasonable
cause.
___________________________________________
Customer's Representative
Subscribed and sworn to before me
this _________ day of ___________________, 1996.
_________________________________________________
___________________________________ Notary Public
My Commission expires: _________________
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ON-LINE AVAILABILITY SCHEDULE
o Hours available for data entry inquiry:
Monday - Friday (Pacific Standard Time) 7:00 a.m. - 8:00 p.m.
Saturday and Sunday (Pacific Standard Time) 7:00 a.m. - 4:00 p.m.
o Hours available for ATMs and Audio Response Units
Twenty-four (24) hours per day, seven (7) days per week*
* M&I requires one (1) to two (2) hours per week for file organization.