CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT (the “Agreement”), dated as of this ____ day
of ____________ 2015, is by and between the undersigned recipient of confidential
evaluation material (the “Recipient”) and a duly organized, financial institution (the
“Disclosing Party”) that will be identified prior to the disclosure of confidential
information.
WHEREAS, the Recipient has expressed an interest in engaging in the potential purchase
of loans and/or real estate offered for sale by the Disclosing Party (the “Proposed
Transaction”). The Disclosing Party has agreed to provide, and the Recipient has agreed
to maintain, the confidentiality of certain information that is non-public, confidential or
proprietary in nature.
NOW, THEREFORE, as a condition of Recipient receiving confidential information
from the Disclosing Party, and in consideration of the mutual promises and covenants
herein set forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to be legally bound, hereby agree
as follows:
1. Definitions. As used in this Agreement, the following terms have the meanings stated:
“Evaluation Material” means information that is furnished either prior to or after the date
of this Agreement, whether orally or in writing, which would reasonably be expected to
be confidential, including, without limitation, the following: the name of the Disclosing
Party; the existence of the Proposed Transaction; loan and deposit documentation and
data; past, present and future customer information; information protected by privacy and
disclosure laws, including the Gramm-Leach-Bliley Act and its implementing
regulations; marketing and development plans or studies; research and development;
consultants’ reports; business plans; policies; contracts; financial information; matters of
a technical nature, such as operations, systems, “know how,” discoveries, inventions,
ideas, computer software and programs; access codes and source codes; trade secrets;
processes and techniques; and other similar information in which the Disclosing Party or
its affiliate has rights; provided, however, that “Evaluation Material” does not include
Public Information.
“Person” means an individual, a corporation, a partnership, a limited liability company,
an association, a trust or any other entity or organization of any kind, including, without
limitation, a governmental authority or agency.
“Public Information” means (i) information that is obtained by the Recipient or its
Representatives on a non-confidential basis from a source other than the Disclosing
Party; provided that such source is not known, or should not reasonably have been
known, by the Recipient or its Representatives to be bound by obligations of
confidentiality with respect to such information; (ii) information that is or becomes
generally available to the public other than as a result of a disclosure by the Recipient or
its Representatives in violation of the provisions of this Agreement; or (iii) information
that is developed independently by the Recipient or its Representatives without use of the
Evaluation Material.
“Representatives” means affiliates, directors, officers, employees, managers, members,
partners, representatives or agents, including, without limitation, their attorneys,
consultants, lenders, potential investors and financial advisors.
2. Permitted Use; Non-Disclosure of Evaluation Material. The Recipient agrees that its
review and inspection of the Evaluation Material is solely to conduct due diligence for
the sole purpose of evaluating and/or engaging in the Proposed Transaction. The
Recipient and its Representatives will treat all Evaluation Material disclosed to them by
the Disclosing Party or any of the Disclosing Party’s affiliates as secret and confidential
and will protect and safeguard such Evaluation Material from any disclosure, except as
provided in Sections 4 or 5 below. Except as provided in Section 4 or 5, below, the
Recipient further agrees not to disclose any Evaluation Material without the prior written
consent of the Disclosing Party.
3. No Contact with Borrower without Consent. Notwithstanding anything to the contrary
set forth in this Agreement and without the prior written consent of the Disclosing Party,
the Recipient and its Representatives shall not call, write, meet with, or have any other
contact with any Person identified in the Evaluation Material (including, without
limitation, any borrowers, obligors, guarantors, property management companies, leasing
agents, tenants or their respective legal counsel) regarding or in way relating to the
Evaluation Material or the Proposed Transaction.
4. Permitted Disclosure. Notwithstanding the provisions of Section 2 above, the Recipient
may disclose the Evaluation Material to its Representatives who (a) need to know such
information to review the interest of the Recipient or its Representatives in entering into a
transaction relating to the Disclosing Party; and (b) are informed of the confidential
nature of the Evaluation Material; and (c) agree to maintain the confidentiality of the
Evaluation Material. The Recipient agrees to be fully responsible for any breach of the
confidentiality provisions of this Agreement by any of its Representatives.
5. Compelled Disclosure. Notwithstanding the provisions of Section 2, if the Recipient or
any of its Representatives are required or requested to disclose any Evaluation Material
pursuant to any applicable law, rule, regulation, subpoena, court order, similar judicial
process, regulatory agency or stock exchange rule, the Recipient will, if possible,
promptly notify the Disclosing Party of any such requirement so that the Disclosing
Party, at its sole cost and expense, may seek an appropriate protective order or waive
compliance with the provisions of this Agreement. If such order is not obtained, or the
Disclosing Party waives compliance with the provisions of this Agreement, the Recipient
and its Representatives will disclose only that portion of the Evaluation Material which
they are requested or required by the above person or process to so disclose. In the event
that the Recipient and its Representatives shall have complied fully with the provisions of
this Section 5, the Disclosing Party agrees that such disclosure may be made by the
Recipient and its Representatives without any liability hereunder.
6. Return or Destruction of Evaluation Material. In the event that the Disclosing Party
and the Recipient terminate negotiations with respect to the Proposed Transaction or
otherwise agree not to proceed with the Proposed Transaction, the Recipient will return to
the Disclosing Party or otherwise destroy all Evaluation Material in tangible form
(whether in written form, electronically stored or otherwise) received by the
Recipient. To the extent practicable, all Evaluation Material will be destroyed unless
such Evaluation Material is required to be retained pursuant to applicable law, regulation
or internal document retention policies. If the Recipient retains archival copies of any
Evaluation Material, including copies on electronic backup media, then, notwithstanding
Section 10A(b) of the Securities Act of 1934, the Recipient shall continue to maintain the
confidentiality of all information protected by the Gramm-Leach-Bliley Act of 1999
(Public Law 106-102, 113 Stat. 1138), the regulations promulgated thereunder, or other
applicable law now or hereafter in effect.
7. Indemnification. The Recipient will indemnify and hold harmless the Disclosing Party
and its Representatives from and against any and all loss, damage, costs or expenses
(including, without limitation, attorneys’ fees and costs) resulting from any impermissible
use or disclosure of Evaluation Material by the Recipient or its Representatives in
violation of this Agreement.
8. Compliance with Securities Laws. The Recipient acknowledges that United States
securities laws prohibit any person with material, non-public information about a
registered security from selling such securities or, subject to certain limited exceptions,
from communicating such information to any other person. The Recipient hereby agrees
to comply, and to ensure compliance by its Representatives, with applicable securities
laws with respect to the Evaluation Material, which might include material, non-public
information.
9. Data Breach. In the event that Recipient or its Representative(s) has any reason to
believe that any data breach involving Evaluation Material has occurred, Recipient shall:
(a) immediately notify Disclosing Party of such data breach; and (b) immediately take
appropriate action to remedy the data breach. For purposes of this Section 9, a data
breach includes, but is not limited to, any corruption or loss of Evaluation Material or
unauthorized access to Evaluation Material, whether electronic or otherwise. Recipient
understands and acknowledges that Disclosing Party has an affirmative obligation to
require that Recipient notify Disclosing Party of any data breach so that Disclosing Party
can implement its response program to prevent misuse of its customers’ personal
information.
10. Representations and Warranties. The Recipient hereby represents and warrants that,
with respect to Proposed Transaction, the Recipient is (a) a principal investor and is not
acting in any brokerage capacity, including, without limitation, acting as an agent,
representative or broker of any disclosed or undisclosed party; and (b) an “accredited
investor” as defined in Rule 501 of Regulation D.
11. Definitive Agreement. This Agreement does not constitute a binding agreement or
obligation to reach a final and definitive agreement with respect to the Proposed
Transaction, and no contract or agreement providing for any transaction involving the
Disclosing Party or the Recipient shall be deemed to exist between the Disclosing Party
and the Recipient unless and until a final and definitive agreement satisfactory to the
Disclosing Party and the Recipient has been negotiated, fully executed and delivered by
both parties.
12. Term of this Agreement. This Agreement and the parties’ obligations hereunder shall
terminate and be of no further force or effect on the earlier to occur of (a) the date on
which the Recipient purchases and the Disclosing Party transfers loans pursuant to the
Proposed Transaction; or (b) 18 months from the date hereof.
13. Integration. This Agreement contains and constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior negotiations,
agreements and understandings, whether written or oral, of the parties hereto.
14. No Waiver; Remedies. No failure or delay by any party in exercising any right, power
or privilege under this Agreement will operate as a waiver of the right, power or
privilege. A single or partial exercise of any right, power or privilege will not preclude
any other or further exercise of the right, power or privilege or the exercise of any other
right, power or privilege. The rights and remedies provided in this Agreement will be
cumulative and not exclusive of any rights or remedies provided by law.
15. Governing Law. This Agreement will be governed by, and construed in accordance
with, the laws of the State of California, without reference to conflicts of laws provisions.
16. Ambiguities. This Agreement was negotiated between legal counsel for the parties,
and any ambiguity in this Agreement shall not be construed against any party that drafted
or revised this Agreement.
17. Electronic Records and Signature. It is agreed by the parties that, notwithstanding the
use herein of the words "writing," "execution," "signed," "signature," or other words of
similar import, the Parties intend that the use of electronic signatures and the keeping of
records in electronic form be granted the same legal effect, validity or enforceability as a
signature affixed by hand or the use of a paper-based record keeping system (as the case
might be) to the extent and as provided for in any applicable law including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the
Uniform Electronic Transactions Act.
IN WITNESS WHEREOF, the Recipient has caused this Agreement to be executed in
favor of the Disclosing Party as of the date and year first written above.
Requested Amendments to Confidentiality Agreement:
By:
(Signature)
Name:
(Print Name)
Title:
Date:
Company:
Address:
City/State/Zip:
Telephone:
Fax:
Email:
Please indicate all Representatives who should receive electronic information, data tapes, correspondence, updates, etc.
under the terms of this Agreement.
Name:
Email:
(Print Name)
Name:
(Print Name)
Email:
Name:
Email:
Date Signed:
Signature:
(Print Name)