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EXHIBIT 10.7
LOAN DOCUMENTATION 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. Term. Subject to the provisions of Section 8 hereof, the initial term
shall be one (1) years. This Agreement shall automatically renew for a
successive one (1) year term unless either party notifies the other of its
intent not to renew within six (6) months before the end of any term.
2. Duties of Servicer. Servicer shall provide Customer with loan
documentation utilizing the CFI Laser Pro forms and system, except for
specialized documentation which shall be prepared by such person or firm as
Customer designates. The loan documents shall be prepared by Servicer and will
be available to Customer at a printer to be designated by Customer and located
in Customer's premises.
3. Duties of Customer. It shall be Customer's responsibility to provide
Servicer, from time to time, with an updated list of officers authorized to
request loan documentation. In addition, Customer will provide to Servicer such
loan approvals and supporting documentation as are necessary to permit Servicer
to produce the appropriate loan documentation. It shall be the Customer's
responsibility to review all loan documents prepared by Servicer for both
accuracy and completeness. Customer shall notify Servicer of any errors or
omissions noted in the loan documentation and Servicer shall immediately revise
the loan documentation in such manner as is requested by Customer.
4. 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 process Customer's loan documentation requests
promptly, with an anticipated turn around time of 24-48 hours and in any case
not to exceed 72 hours. Servicer shall not be responsible for delays
attributable to causes beyond its reasonable control, including limitations upon
the availability of telephone transmission facilities or failures of other
communications equipment or Servicer's inability to access CFI Laser Pro.
5. Fees and Charges. During the first year of the term, Servicer will
charge and Customer will pay the fees and charges as set forth in Schedule "A"
attached hereto. Thereafter, Servicer may adjust the fees annually; provided
however, that any
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adjustment of the fee schedule must be available for review by the Customer at
least one hundred twenty (120) days prior to its effective date.
6. Backup. Servicer shall maintain adequate backup arrangements and
equipment in order to maintain services hereunder in the event of the failure of
Servicer's equipment . Without limiting the generality of the foregoing,
Servicer will backup all files daily by tape onto Servicer's network and will
maintain duplicate tapes off-site. In addition, monthly backup tapes will be
available to Customer upon request.
7. 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, both during the term of this Agreement and forever
thereafter, 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 the servicing of Customer's transactions 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.
8. Termination.
A. Termination for Non-Payment. In the event that Customer fails
to pay any fees properly invoiced to Customer by Servicer within sixty (60) days
from the date of Servicer's invoice, Servicer in its discretion may terminate
this Agreement immediately with notification to Customer.
B. Termination on Notice. Customer may terminate this Agreement
upon ninety (90) days prior written notice to Servicer and Servicer may
terminate this Agreement upon one hundred and twenty (120) days prior written
notice to Customer.
9. 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
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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, or (d) from any error, failure or delay in transmission or
delivery of any data, records, or items, including without limitation, any
inoperability of computer or communications facilities, or other circumstances
beyond Servicer's reasonable control. Further, Customer acknowledges that
Servicer is utilizing loan documentation forms provided by CFI Laser Pro and
that Servicer has made no representation or warranty regarding the legality or
enforceability of these Laser Pro loan documents.
10. 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 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 request.
11. 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
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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
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 11 shall survive the termination of this Agreement.
12. 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.
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13. 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.
14. 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 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.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
16. 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 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. Garduino
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Its: Executive Vice President
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