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EXHIBIT 10.6
CREDIT ANALYSIS AGREEMENT
THIS AGREEMENT is made as of February 1, 1998, by and between DataTech
Management, Inc. ("Servicer"), a corporation duly organized and existing under
the laws of the State of California, and First Coastal Bank, N.A., a national
banking association ("Customer"), duly organized and existing under the laws of
the United States of America.
The parties hereto, in consideration of the obligations herein made and
undertaken, and intending to be legally bound, hereby agree as follows:
1. Duties of Servicer. Servicer shall provide Customer with such credit
analysis services as Customer may request and that Servicer makes available,
from time to time, including but not limited to, obtaining credit reports,
Fair/Xxxxx Credit Scoring for small business applicants and for consumer loan
applicants, the preparation of credit analysis worksheets including business
debt coverage, personal 1040 cash flow analysis, real estate collateral
coverage, business collateral coverage, combined collateral coverage, financial
statements and spreadsheets, accounts receivable aging summaries, schedules of
real estate owned and personal credit analysis. In addition, Servicer will
provide, upon request, a full credit analysis, complete with a Fair/Xxxxxx Small
Business Scorecard, appropriate credit analysis worksheets, financial statement
spreads and a brief narrative summary discussion.
2. Duties of Customer. It shall be Customer's responsibility to provide
Servicer with such raw data and supporting information as Servicer reasonably
requests in order to perform the credit analysis services, generally as set
forth on the "Credit Analysis Check Sheet" a sample of which is attached hereto
as Exhibit A.
3. Processing. Servicer's scheduled business hours will be 8:30 a.m. to
5:30 p.m., Pacific Time, Monday through Friday, except for bank holidays
observed in California. Servicer will provide credit analysis services promptly,
generally within three (3) business days of receipt of all information, data and
documents requested by Servicer. Servicer shall not be responsible for delays
attributable to causes beyond its reasonable control.
4. Fees and Charges. For the services to be provided hereunder, Servicer
will charge and Customer will pay the fees and charges as set forth in Exhibit B
attached hereto. Servicer may adjust the fees periodically; provided however,
that any adjustment of the fee schedule must be available for review by the
Customer at least sixty (60) days prior to its effective date.
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5. Records. Customer acknowledges that Servicer may microfilm, or
otherwise copy, the documents sent to Servicer by Customer. Otherwise, the
documents and records sent to Servicer, as the basis for rendering its credit
analysis services will be returned to Customer along with Servicer's worksheets
and analysis.
6. Confidentiality. Customer views the data, information and records
relating to its business and the data, information, records and accounts of its
customers as "confidential information". Servicer views all data, information
and records relating to its customers and its provision of services under this
Agreement as confidential information.
The parties agree to hold each other's confidential information in
confidence. The parties agree not to make each other's confidential information
available in any form to any third party or to use each other's confidential
information for any purpose other than providing services to Customer and the
implementation of this Agreement. Should either party receive a subpoena or
similar judicial or governmental order or request seeking confidential
information belonging or pertaining to the other party, notice of such subpoena
or order shall be given immediately to the other party so as to afford
reasonable opportunity to seek a protective order or such other relief as may be
deemed appropriate by the party in interest. Each party agrees to take all
reasonable steps to ensure that confidential information is not disclosed or
distributed by its employees or agents in violation of the provision of this
Agreement.
7. Limitation of Liability. Servicer shall be liable to Customer only
for Servicer's intentional misconduct or materially negligent performance of the
services to be provided hereunder. Servicer shall not be responsible for any
loss arising, directly or indirectly, in whole or in part, from: (a) any act or
failure to act on the part of any person not within Servicer's reasonable
control, (b) the negligence of Customer or the breach of this Agreement by
Customer, (c) any ambiguity or inaccuracy in any instruction given to the
Servicer by Customer or Customer's agent, (d) from any error, failure or delay
in transmission or delivery of any data, documents or records provided, or to be
provided, to Servicer by Customer, or (e) Customer's altering, editing or
revising any document, report, write-up or analysis furnished to Customer by
Servicer.
8. Insurance. Servicer will carry such insurance as is ordinary and
customary for similar types of business including employee fidelity coverage of
not less than $2,000,000, errors and omissions coverage, and physical loss
coverage insuring Customer's records while in Servicer's possession. A summary
of Servicer's insurance coverage shall be available to Customer upon
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request.
9. Indemnity.
A. Except to the extent prohibited or limited by law, Customer shall
defend, indemnify and hold harmless the Servicer against any and all losses,
claims, damages, liabilities, actions, costs or expenses, including reasonable
attorneys' fees incurred by it in connection with any claim against it and in
defending any action (collectively "Losses"), for which the Servicer may become
liable and which arise out of or are based upon any act or omission to act by
any officer or employee of Customer.
B. Except to the extent prohibited or limited by law, the Servicer
shall defend, indemnify and hold harmless Customer from and against any and all
losses, claims, damages, liabilities, actions, costs or expenses, including
reasonable attorneys' fees incurred by it in connection with any claim against
it and in defending any action (collectively "Losses") for which Customer may
become liable and which arise out of or are based upon any act or omission to
act by any officer or employee of Servicer.
C. If any claim is made or lawsuit, proceeding or enforcement action
is filed (herein, "Claim" or "Claims") against any party entitled to the benefit
of indemnity hereunder, written notice thereof shall be given to the
indemnifying party as promptly as practicable (and in any event within ten (10)
business days after receipt of the Claim or the service of the citation or
summons); provided, that the failure of any indemnified party to give timely
notice shall not affect rights to indemnification hereunder except to the extent
that the indemnifying party demonstrates actual damage caused by such failure.
The indemnifying party shall be entitled, if it so elects, to take control of
the defense and investigation of such Claim, and to employ and engage attorneys
of its own choice who are reasonably acceptable to the indemnified party to
handle and defend the same, at the indemnifying party's cost, risk and expense.
The indemnifying party shall notify the indemnified party in writing of its
election to defend in good faith any such Claim as soon as it is practicable,
and in any event within fifteen (15) days after receipt of written notice
thereof by the indemnifying party from the indemnified party. The indemnifying
party shall have the right to settle or compromise any such claim without the
consent of the indemnified party at any time utilizing its own funds to do so,
if in connection with such settlement or compromise the indemnified party is
fully released from liability and is paid any indemnification amounts due
hereunder. If the indemnifying party fails, or does not elect, to assume the
defense of such Claim within fifteen (15) days
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after receipt of notice pursuant to this Section, the indemnified party will
(upon delivering notice to such effect to the indemnifying party) have the right
to undertake, at the indemnifying party's cost and expense, the defense,
compromise or settlement of such Claim on behalf of and for the account and risk
of the indemnifying party; provided, however, that such Claim shall not be
compromised or settled without the written consent of the indemnifying party,
which consent shall not be unreasonably withheld. In the event the indemnified
party assumes defense of the Claim, the indemnified party will keep the
indemnifying party reasonably informed of the progress of any such defense,
compromise or settlement. The indemnifying party shall be liable for any
settlement of any Claim effected pursuant to and in accordance with this Section
and/or any final judgment or assessment (subject to any right of appeal), and
the indemnifying party agrees to indemnify and hold harmless the indemnified
party from and against any damages by reason of such settlement or judgment.
D. The indemnified party shall cooperate in all reasonable respects
with the indemnifying party and its attorneys in any investigation, trial and
defense relating to a Claim and any appeal arising therefrom; provided, however,
that the indemnified party may, at its own costs, participate in the
investigation, trial and defense of such claim and any appeal arising therefrom.
E. The rights of the parties to indemnification provided for in this
Section 9 shall survive the termination of this Agreement.
10. Auditing. Servicer will cause an independent audit of its operation
to be conducted at least annually and shall make a copy of that audit available
to Customer upon request.
Customer, its independent auditors, and any bank regulatory personnel
shall have access to, and may examine, all documents and records pertaining to
Customer held by Servicer, during Servicer's scheduled business hours.
11. Binding Nature and Assignment. This Agreement shall be binding on
parties hereto and their successors and assigns, but neither party may assign
this Agreement without the prior written consent of the other, which consent
shall not be unreasonably withheld.
12. Entire Agreement. This Agreement, together with each Schedule
annexed hereto, constitutes the entire agreement between the parties. There are
no understandings or agreements relative hereto which are not fully expressed
herein and no change, waiver or discharge hereof shall be valid unless in
writing and executed
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by the party against whom such change, waiver or discharge is sought to be
enforced. This Agreement supersedes any and all previous agreements relating to
loan documentation services entered into between the parties.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
14. Binding Arbitration. Any controversy arising out of or relating to
this Agreement or the transactions contemplated hereby shall be referred to
arbitration pursuant to the provisions of California Code of Civil Procedure
Section 1281 et.
seq.
DataTech Management, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: President
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First Coastal Bank, N.A.
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("Customer")
By: /s/ Xxxxx X. Xxxxxxxx
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Its: Executive Vice President
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