Non-Circumvent Non-Disclosure Agreement
We require that this document be signed as a “good faith” commitment to do the deal as per our agreement.
PARTIES AND PURPOSE
The undersigned are mutually desirous of doing business with respect to the arranging, selling and buying of REO Notes and REO Property Portfolios in cooperation with one another and with third parties for the mutual benefit of all. It is their intention that the information exchanged among the signatories in the course of doing business, as well as the documents which will be generated subsequent to the execution of this Agreement, including but not limited to letters of intent, full corporate offers, bank comfort letters, contract terms and conditions, banking details or pre-advised payment instruments, and/or any information contained in such documents, will not be passed, under any circumstance, to another intermediary or broker or trader or any other company or private person who is not an end buyers end supplier, without prior specific written consent of the party or parties generating or with proprietary rights to such information and/or documentation.
This Agreement shall obligate the undersigned parties and their partners, associates, employers, employees, affiliates, subsidiaries, parent companies, nominees, representatives, successors, clients and assigns (hereinafter collectively referred to as ‘The Parties’) jointly, severally, mutually and reciprocally for the term of and to the performance of the terms and conditions expressly stated and agreed to below. Furthermore, whenever this Agreement shall be referenced in any subsequent document(s) or written agreements, the terms and conditions of this Agreement shall apply as noted and shall further extend to any exchange of information, written, oral or in any other form, involving financial data, personal or corporate names, contracts initiated by or involving the parties and any addition, renewal, extension, rollover amendment, renegotiations or new agreement that are in any way a component of what shall hereinafter be referred to as ‘The Project’ or ‘The Transaction’ for the purchase of the subject commodities, products, and/or equipment.
NOW, THEREFORE, IT IS MUTUALLY AGREED;
AGREEMENT NOT TO DEAL WITHOUT CONSENT
The Parties hereby legally, wholly and irrevocably bind themselves and guarantee to one another that they shall not directly or indirectly interfere with, circumvent or attempt to circumvent, avoid, by-pass or obviate each others’ interest, or the interest or relationship between The Parties, by means of any procedures, sellers, buyers, consultants, dealers, distributors, refiners, shippers, financial instructions, technology owners or manufacturers, for the purpose of changing, increasing or avoiding, directly or indirectly, payments of established or to be established fees, commissions, or the continuance of pre-established relationships, or to intervene in un-contracted relationships with manufacturers or technology owners, intermediaries, entrepreneurs, legal council, or to initiate any buy/sell or any transactional relationship that by-passes one of The Parties in favor of any other individual or entity, in connection with the subject Transaction or Project or any related future Transaction or Project.
AGREEMENT NOT TO DISCLOSE
The Parties irrevocably agree that they shall not disclose or otherwise reveal directly or indirectly to any unauthorized individual or entity any confidential information provided by one party to another, including but not limited to contract terms, product information or manufacturing processes, prices, fees, financial agreements, schedules and information concerning the identity of sellers, producers, buyers, lenders, borrowers, consultants, distributors, refiners, manufacturers, technology owners, or the representatives of any of the above, as well as names, addresses, principals or telex/fax/telephone numbers, references to product or technology information and/or any other information deemed confidential or privileged within the broadest possible scope of The Project or The Transaction without prior specific written consent of the party or parties generating or with proprietary rights to such information.
RELATIONSHIPS AND PREVIOUS RELATIONSHIPS
If either Party has already established a previous relationship with the parties to a transaction or the contact introduced in the specific transaction, the Party with the previous relationship or transaction will immediately notify the other Party by email or fax outlining the prior relationship and, in that specific case, the Party with the previous relationship or transaction will be exempt from the non-circumvention clause of this Agreement. The other Party reserves its abilities and rights to dispute the existence of prior relationship. Furthermore, the Parties agree that this Agreement shall not be construed to impede the development of normal day to day business relationships regardless of the existence of a pre-existing relationship on the part of either party, such as, other direct sellers of REO portfolios and notes, including but not limited to, lenders and other mortgage brokers.
AGREEMENT TO HONOR COMMISSIONS
Commissions, fees, compensation or remuneration to be paid as part of The Transaction or The Project anticipated by this Agreement shall be agreed upon by separate written agreement of The Parties concerned and shall be paid at the time and in the manner designated in such separate agreement, unless otherwise agreed among the affected Parties.
All Parties hereby irrevocably and unconditionally agree and guarantee to honor and respect all such fees and remuneration arrangements made as part of a commission transaction, even if an individual Party is not an integral component of and/or a signatory to a specific commission, fee or remuneration agreement.
AGREEMENT TO INFORM
In the specific situation where a Party acting as an agent of the buyer allows the buyer or the buyer’s representative and the seller to deal directly with one another, said agent shall be informed of the subsequent development of all transactions between the buyer or the buyer’s representative, and shall be provided timely copies of all pertinent developmental and/or transactional correspondence and documentation relative thereto by the buyer or the buyer’s representative and/or the seller.
CONTRACTS AFTER AGREEMENT TERM Both Parties agree not to make contact with, solicit, deal with, or otherwise be involved in any transaction(s) with regard to source, contact, trust, client, strategic partner and/or other entity that the other Party introduces to or discusses with the other Party for a period of 18 months after the termination of this Agreement.
INJUNCTIVE RELIEF AND PENALTIES
The Parties agree that in the event there is a violation of this Agreement, the Non-Violating Party is entitled to injunctive relief. Furthermore, any violation of this Agreement is enforceable by a penalty of 200% of actual damages per incident and such penalty shall apply to any and all subsequent transactions with that source, contact, trust, client, strategic partner and/or other entity. This penalty shall survive the term of this Agreement and all extensions or rollovers.
TERM
This Agreement shall be valid for five (5) years commencing from the date of this agreement. This Agreement may be renewed for a further period of five (5) years, subject to and upon the terms and conditions agreed between and among the signatories.
This Agreement shall apply to:
Ø All transactions originated during the term of this Agreement. Ø All subsequent transactions that are follow up, repeat, or extended transactions or renegotiation(s) of transactions originated during the term of this Agreement.
ARBITRATION
All disputes arising out of or in connection with this Agreement shall be finally settled under the rules of arbitration of the ‘State of California’ by one or more ‘Arbitrators’ appointed in accordance with said rules. All such arbitration awards shall be binding on all Parties and enforceable at law.
The Parties further agree to carry out the terms of any arbitration award without delay and shall be deemed to have waived their right to any form of alternative recourse, by or through any other means, insofar as such waiver can validly be made.
Each of The Parties named in an Arbitration proceeding and/or required to appear under such a proceeding, unless otherwise agreed, shall be responsible for its own legal expenses. The prior sentence notwithstanding, any Party adjudged by the Arbitrator to be in material breach of this Agreement shall compensate in full the aggrieved party, its heirs, assignees and/or assigns, for the total remuneration received as a result of business conducted with The Parties covered by this agreement, plus, subject to the determination of the Arbitrator, all its arbitration costs, legal expenses and other charges and damages incurred relative to its dealings with banks, lending institutions, corporations, organizations, individuals, lenders, or borrowers, buyers or sellers that were introduced by the aggrieved party, notwithstanding any other provisions of the award.
FORCE MAJEURE
A Party shall not be considered or adjudged to be in violation of this Agreement when the violation is due to circumstances beyond its reasonable control, including but not limited to Acts of God, natural disasters, civil disturbances, war, fires, floods, strikes and failures of third parties to perform their obligations to either Party. As a condition to the claim of non-liability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon.
ENTITIES OWNED OR CONTROLLED
This Agreement shall be binding upon all entities owned or controlled by a party and upon the principal(s), employee(s), assignee(s), family and heirs of each party. Neither party shall have the right to assign this Agreement without the express written consent of the other.
AGREEMENT NOT TO CIRCUMVENT
The Parties agree not to circumvent or attempt to circumvent this agreement in an effort to gain fees, commissions, remunerations or considerations to the benefit of the one or more of The Parties with the full knowledge and acquiescence of all necessary Parties, whether or not such fees, commissions remunerations or considerations gained through circumvention would otherwise be deemed the rightful property of any one or several of The Parties.
NOT PARTNERSHIP AGREEMENT
This Agreement in no way shall be construed as being an agreement of partnership and none of The Parties shall have any claim against any separate dealing, venture or assets of any other party, nor shall any party be liable for the separate and independent actions of any other.
SEVERABILITY
If a court or arbitrator finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to affect the intent of the Parties. This Agreement will be governed by and construed in accordance with the laws of the State of California.
TRANSMISSION OF THIS AGREEMENT
Any accurate and legally binding version of this Agreement accurately transmitted through MSN Messenger or any similar programs, as well as tele-fax or e-mail programs, shall be deemed an equivalent, original, legal and binding version of this Agreement.
AGREE AND ATTESTED
Each representative signs below guarantees that he/she is duly empowered by his/her respectively named company to enter into and be bound by the commitments and obligations contained herein either as an individual, corporate body or on behalf of a corporate body.
1) Final Signature – Seller’s Mandate or Representative Signatory Details
Signatory’s Full Name: Company Name: Address: Phone: Fax: E-Mail:
Signature Signed Date
2) Intermediary Group Signatory Details
Signatory’s Full Name: Company Name: Address: Phone: Fax: E-Mail:
Signature Signed Date
3) Intermediary Group Signatory Details
Signatory’s Full Name: Company Name: Address: Phone: Fax: E-Mail:
Signature Signed Date
4) Intermediary Group Transaction Coordinator Signatory Details
Signatory’s Full Name: Company Name: ____________________ Address: ____________________________ Phone: _________ Fax: _________ E-Mail: ______________________ ____________________
______________ _________ Signature Signed Date
5) Intermediary Group #3 Signatory Details
Signatory’s Full Name: Company Name: Address: Phone: Fax: E-Mail:
Signature Signed Date
6) Buyer’s Mandate or Representative Signatory Details
Signatory’s Full Name: Company Name: Address: Phone: Fax: E-Mail:
Signature Signed Date
7) Buyer’s Signatory Details
Signatory’s Full Name: Company Name: Address: Phone: Fax: E-Mail:
Signature Signed Date
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