CONFIDENTIALITY AGREEMENT(For Prospective Purchaser)
The undersigned (“Purchaser”) is considering a purchase of one or more distressed loans from a bank (“Bank”). To facilitate such a transaction Note Solutions, L.L.C. a Colorado Limited Liability Company, (“NS”) has agreed to make available to the undersigned, under the terms described herein, certain financial and business information related to the loans (“Credit File”).
The term Credit File shall mean the written records and documents NS furnishes to Purchaser on or after the date hereof and contains substantially all of the credit information obtained by the Bank on the debtor and may include, as applicable, the following: debtor’s financial statement(s), credit reports, credit application, Bank’s credit evaluation of the debtor, loan documents, appraisal(s), guaranty(s), financial statement(s), credit history, entity authorization to borrow, demands for payments, payment records, any other agreement affecting the distressed loans, litigation pleadings and loan commitment.
The term Credit File does not include information which (a) becomes available to the public other than as a result of a disclosure by the Purchaser or its officers, directors, employees, agents, advisors or representatives (collectively “Representatives”) in violation of this Agreement, (b) was available to Purchaser on a non-confidential basis prior to its disclosure to Purchaser by NS or (c) is independently developed without reference to the Credit File.
Purchaser is aware (a) the Credit File which Purchaser will receive from NS has not been made public, and (b) Credit File is proprietary to the Bank. To maintain the confidentiality of the Credit File and in consideration of its availability, Purchaser agrees that:
- Purchaser will use the Credit File only for the purpose of determining whether Purchaser is interested in purchasing one or more of the distressed loans owned by the Bank.
- PURCHASER WILL NOT DISCLOSE ANY PORTION OF THE CREDIT FILE TO OTHERS, except to its Representatives on a “need-to-know” basis or except, in the opinion of counsel to Purchaser, if required by law. Such Representatives shall be informed by Purchaser of the confidential nature of such information and shall be instructed not to disclose the Credit File to any third party. Purchaser will not be responsible for any breach of this Agreement by its Representatives as if they were parties hereto. In the event that Purchaser or its Representatives are requested pursuant to or required by applicable law or regulation or by legal process to disclose any Credit File, Purchaser agrees that, to the extent practicable under the circumstances and permitted by applicable law, it will provide NS with written notice prior to making any disclosure or, if not practicable under the circumstances but permitted by applicable law, then promptly following such disclosure.
- If Purchaser does not proceed with the purchase of one or more loans, Purchaser and its Representatives will promptly return to NS all of the Credit Files relating to loans not purchased by Purchaser and all of the copies thereof.
- Purchaser acknowledges that disclosure of any portion of a Credit File may result in irreparable harm to NS and the Bank which developed the file. In the event of a breach or a threatened breach of the provisions of this Agreement, and in addition to any other remedies NS or the Bank may have at law or in equity, NS or the Bank shall be entitled to seek an injunction or similar remedy so as to specifically enforce such provisions. In the event of a lawsuit or other proceeding to enforce this Agreement, the prevailing party shall be entitled to recover any reasonable out-of-pocket costs and expenses (including, without limitation, attorneys’ fees) incurred by it in connection with such lawsuit or proceeding.
- Purchaser understands and agrees that neither NS nor the Bank has made or makes any representation or warranty as to the accuracy or completeness of the Credit File or the accuracy, completeness or reliability of any material in the Credit File. Neither NS nor Bank shall have any liability to Purchaser or its Representatives resulting from use of or reliance on the Credit File. Purchaser acknowledges that any decision to purchase a distressed loan (promissory note secured by a mortgage or deed of trust) is based solely on Purchaser’s investigation and analysis and not on any statement or representation made by NS or the Bank.
- Purchaser will not disclose to any person other than its Representatives, either the fact that discussions or negotiations are taking place concerning the purchase of distressed loans, the identity of the parties, or any of the terms or other facts with respect to any such distressed loans. Purchaser will not disclose to any person other than its Representatives, that Purchaser has been contacted by NS or that a purchase of distressed loans is being contemplated.
- To the extent not prohibited by law, Purchaser covenants and agrees that Purchaser and its Representatives will not engage in any business or activity that is in direct competition with NS.
- If Purchaser or any of its Representatives defaults in the performance of any of the provisions hereof, then, in addition to all other rights and remedies available to NS or the Bank under the terms of this Agreement or by law, NS or the Bank shall be entitled to seek equitable relief by way of injunction upon the decision of a court of competent jurisdiction. In the event of a proceeding to enforce this Agreement, the prevailing party shall be entitled to recover any reasonable out-of-pocket costs and expenses (including, without limitation, attorneys’ fees) incurred by such party.
- No failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, and no waiver as to any matter or breach shall operate as a waiver of any other matter or subsequent breach, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right power or privilege hereunder.
- The title of this Agreement is not intended to limit its scope or affect the meaning or interpretation of this Agreement. This Agreement cannot be modified except by written agreement signed by Purchaser and NS.
- This Agreement shall be binding upon the parties and their successors and assigns and shall be governed by the laws of the State of Colorado.
- Purchaser is under no obligation to pursue the purchase of a distressed loan with NS as a result of its review and evaluation. Until a distressed loan is purchased, Bank shall continue to have the right to continue to collect the distressed loan and to foreclose the mortgage or deed of trust securing the distressed loan.
- With respect to any distressed loan purchased by the Purchaser, this Agreement, other than paragraphs 6 and 7 hereof, shall terminate upon the payment of the purchase price to the Bank for cash. With respect to any distressed loan not purchased by the Purchaser, this Agreement shall remain in full force and effect.
- No Credit File or other information concerning a distressed loan will be made available to Purchaser until Purchaser has:
- Executed this Confidentiality Agreement and returned it to NS, and
- Furnished NS with the following information:
- legal entity type of the Purchaser
- Purchaser’s tax I.D. or social security number
- the state or country on which Purchaser is organized
- whether Purchaser is publicly or privately owned
- names and addresses of persons with authority to act on behalf of Purchaser
- names and addresses of significant (10% or more) owner, if a Purchaser is privately owned.
- Evidence satisfactory to NS that the Purchaser has such experience on financial and business matters and experience in commercial lending transactions (including real estate based lending transactions, if applicable) that the Purchaser is capable of evaluating the merits and risks of distressed loans and that the Purchaser has a tangible net worth evidencing its or his financial ability and sophistication.
IF TO NOTE SOLUTIONS:
John A. LaVigne, Registered Agent 11811Upham Street, Unit 6Broomfield, CO 80020
For regular correspondence:
Commercial Note BrokersP.O. Box 283Eastlake, CO 80602
Email:Stuart@CommercialNoteBrokers.com / Jason@CommercialNoteBrokers.com