and
in connection there with, PG will provide the Buyer with
certain information relating to the opportunity,
which PG considers proprietary and highly confidential.
To provide the terms and conditions upon which PG will
disclose such Opportunity, PG and Buyer agree as follows:
1.
Confidentiality Procedures: The Buyer will endeavor
in good faith to maintain the confidentiality of the Confidential Information and,
except as provided below, will exercise reasonable efforts to prevent the unauthorized
disclosure of the Confidential Information to third parties or to officers,
employees and agents of the Buyer, except those who need to know for purposes of evaluating
the potential transaction involving the Opportunity. The Buyer will
promptly return or destroy all confidential information if requested to do so by
PG and at anytime before Buyer has become obligated to participate in the Opportunity,
provided that Buyer may retain such Confidential Information, subject
to confidentiality requirements herein, as it deems necessary to comply with
ordinary and customary retention requirements of financial institutions, sound
business or banking practices audit examination requirements.
2.
Confidential Information: For purposes hereof, the
term "Confidential Information" means all information (whether written, electronic, and oral)
relating to the Opportunity, together with and all analyses, compilations, studies or other
materials whether prepared by PG, Buyer or others, which contain or reflect such information.
Notwithstanding the foregoing, Confidential Information shall not include information
that is in the public domain or the knowledge or possession of Buyer when disclosed to Buyer
or becomes part of the public domain after disclosure to Buyer through no fault of Buyer,
or any information that is independently developed by or on behalf of Buyer not in
violation of this Agreement.
3.
Pemitted Disclosure: This Agreement shall not apply
(a) to disclosure of Confidential Information that in good faith opinion of Buyer, is compelled
by laws, regulations, rules, orders or legal process or proceedings or is disclosed
to: any party, including a prospective participant, who has signed a confidentiality agreement
containing terms substantially similar to those contained herein, or legal counsel, examiners,
auditors, and directors of Buyer and examiners, auditors and investigators having regulatory
authority over Buyer. However, Buyer will use all reasonable efforts to provide PG with
prior notice of any such disclosure.
4.
Non-Circumvention: Without the express prior written
consent of PG, during the term hereof, the Buyer will not contact in connection with
the Opportunity any purchaser, debtor, lessor or guarantor involved in the Opportunity, or any
owner, landlord or lessee of property to be included as collateral or purchased (each a "Principal")
in connection with the Opportunity, and will not consummate a transaction with
or provide any products or services to any Principal for the period ending (twelve) months
from the date hereof without the participation of PG. The Buyer agrees not to seek to obtain
and agrees not to accept any information regarding the Opportunity from any person
other than PG. If the Buyer has any current or prior business dealings or contractual or other
affiliations with Seller or any of its affiliates, then the Buyer shall immediately notify PG
of such dealings or affiliations. Without limiting the other provisions hereof, neither
the Buyer nor any Representatives shall contact or continue any discussions with the Seller or
any of its affiliates,or any of their respective officers, directors, employees, equity owners,
agents, or representatives, or any franchisor, landlord, creditor, vendor or employee of
any such borrower or guarantor for the period of one year.
5.
Limited Representations: PG represents only that disclosing
the Opportunity and providing the Confidential Information to Buyer does not violate
or conflict with any contractual obligation or provide any third party with any rights,
and PG makes no representation or warranty as to the accuracy or completeness of any Confidential
Information. Neither PG nor Buyer shall have any liability for any representations
(express or implied) contained in, or for any omissions from, the Confidential Information or any
other communications transmitted in the course of the evaluation of the Opportunity.
6.
Term: Provisions relating to confidentiality and non-contact
in this Agreement with respect to any Opportunity shall terminate one year from the date
herein, or if earlier, on the date which the Opportunity is consummated. Except as provided
in the preceding sentence, this Agreement shall terminate on the date that is one year
from the date hereof.
7.
Miscellaneous: It is agreed that money damages would
not be a sufficient remedy for breach of this Agreement by Buyer and that this Agreement is
binding upon the successors and assigns of PG and Buyer. This Agreement may be signed
in counterpart with each constituting an original and all counterparts consisting
one and the same instrument.
