Reprinted with permission from Bank Director Magazine.
Outsourced core processing usually represents regional and community banks’ most significant — and most maligned — contractual relationship. Core technology is a heavy financial line item, an essential component of bank operations and, too often, a contractual minefield.
But contrary to popular belief, it is possible for banks to negotiate critical contractual issues with core processing providers. No matter their size, banks can negotiate both the business and legal terms of these agreements. Technology consultants and outside legal counsel can play impactful, complementary roles to help level the playing field. Be certain that your bank is well advised and allocating adequate resources to these matters.
Critical Contractual Issues
From a legal angle, we at BFKN routinely look at and comment on dozens of separate points in a typical agreement — some of which are of critical importance as the arrangement matures. We have favorably revised termination penalties, service levels and remedies, the definition and ownership of data, caps on annual fee increases, limitations of liability, information security and business continuity provisions, ongoing diligence and audit rights, deconversion fees and the co-termination of all services and products, among many other items.
Exclusivity provisions which prevent banks from securing competing products without incurring penalties are also a focus for many organizations seeking to futureproof their core processing; a vendor reserving exclusivity, whether outright or through volume minimums, can hinder the bank’s ability to innovate.
Engaging External Resources
Banks are generally at a disadvantage in vendor contract negotiations, given that vendors negotiate their forms frequently against many parties and banks do not. Fortunately, there is a robust industry of technology consultants, of varying degrees of competence and quality, that work specifically in the core processing and technology vendor space. Most banks should engage both technology consultants, which can tackle the practical and business angles of the vendor relationship, and outside legal counsel, to focus on legal and regulatory concerns.
When considering whether to bring in outside advisors, executives at institutions considering a change in their vendor or approaching a renewal or significant change in their core processing services should ask the following questions:
- Has the bank thoroughly evaluated its existing relationship and potential alternatives?
- Would it be helpful to have an outside consultant with a perspective on the current market review the key business terms and pricing considerations?
- Is the bank confident that the existing agreement sufficiently details the parties’ legal rights and responsibilities? Could it benefit from an informed legal review?
- If considering an extension of an existing relationship, can any proposed changes be addressed sufficiently in an amendment to the existing contract, or is it time for a full restatement (and a full review) of the documentation?
- Are there strategic considerations, such as a potential combination with another entity or the exploration of a fintech venture, that may raise complex issues down the line?
Leveraging Internal Resources
Dedicating the right internal resources also helps banks ensure that they maximize their leverage when negotiating a core processing agreement. As a general matter, directors and senior management should have an ongoing familiarity with the bank’s vendor relationship. For many, this can seem a Herculean task. Core processing contracts often span hundreds of pages and terms are gradually added, dropped and altered through overriding amendments. Nevertheless, by understanding, outlining, and tracking key contractual terms and ongoing performance, directors and senior management can proactively assess the processor and apprise its limitations.
This engagement can result in better outcomes. Are there any performance issues or problems with the bank’s current vendor? If a provider is falling short, there may be alternatives. Diverse technology offerings are introduced to the market continually. Of course, establishing a new relationship can be a painstaking process, and there are risks to breaking with the “devil you know.” Yet we are having more conversations with banks that are exploring less-traditional core technology vendors and products.
Short of a wholesale switch of vendors and products, it is possible for banks to negotiate for contractual protections against a vendor’s limitations. And even if senior management takes the lead in negotiating against the vendor, directors can play a valuable role in the negotiation process. We’ve seen positive and concrete results when the board or a key director is engaged at a high level.
If it’s time to start negotiating with a core processing provider, don’t leave your chips on the table. Fully utilizing both internal and external resources can ensure that the bank’s core processing relationship supports the bank for years to come.
To read the article on Bank Director's site, visit: https://www.bankdirector.com/issues/strategy/core-processing-find-the-aces-up-your-sleeve/
About the Lawyer
Katherine Fritzi Getz is a partner at BFKN who advises financial institutions on corporate, regulatory and securities law matters. Katherine regularly represents clients in connection with the review and negotiation of business contracts, including a wide range of vendor agreements and Fintech arrangements and partnerships.