This Non-Disclosure Agreement (the “Agreement”) is made effective as of March 16, 2021 as of date Prospective Buyer registers on preREO and agrees to this agreement (the “Effective Date”) by and between Propertive Buyer Scottsdale REI, LLCs (the Receiving Party Company”), with its principal place of business at 515 East Grant Street, Phoenix, Arizona 85004, United States and PREREO LLC (together with its affiliates, successors and/or assigns, all referred to herein as “preREO”), with its principal place of business at 440 S. LaSalle St, Suite 1110, Chicago IL 60605, each of which shall be referred to herein individually, as the context requires, as a “Party” and collectively as the “Parties”.
1. Purpose. The purpose is for preREO to explore the possibility of and potentially engage in a business relationship with the Company, which relationship may include provision of technology or others services related to finance, lending, or other transactions related to real estate assets or real estate related assets, or other services incidental thereto, (collectively, the “Potential Transaction”) which in turn may entail the exchange or disclosure of certain information between the Parties in both the preparation for and in carrying out of the Potential Transaction.
2. Confidential Information. In connection with the Potential Transaction, each Party may find it necessary to disclose certain financial, technical or business information to the other Party that the disclosing party (“Disclosing Party”) desires the receiving party (“Receiving Party”) to treat as confidential. Confidential information (“Confidential Information”) means any information disclosed to a Receiving Party by the Disclosing Party on or after the Effective Date, either directly or indirectly in writing, electronically, orally or by inspection of tangible objects, including without limitation (i) financial information (including financial information regarding preREO and the Company and their respective affiliates), announced and unannounced products, disclosed and undisclosed business plans and strategies, financial data and analysis, data tapes, collateral documents, borrower information, customer names and lists, customer data, databases, specifications, formulations, computer software, identity of or details about actual or potential customers or projects, funding sources and strategies, and strategies involving strategic business combinations, (ii) any and all confidential, trade secret, or proprietary information, including but not limited to any information related to business processes, procedures, operational guidelines, proprietary formulas, proprietary methods, proprietary documents, proprietary strategies, or similar types of information, whether or not specifically identified as confidential, proprietary, or trade secret, and whether or not classified as a trade secret under applicable law, (iii) information relating to employees, contractors or customers, or mortgagors which, if released, would cause an unlawful invasion of privacy, and (iv) any compilation or summary information or data that contains or is based on Confidential Information.
The term Confidential Information shall not apply to any information which: (a) is generally available to the public or in the possession of the Receiving Party prior to the date of disclosure or through no fault of the Receiving Party; (b) is rightfully received from any third party without any obligation of confidentiality to the Disclosing Party; (c) is independently developed by the Receiving Party without use of the Confidential Information of the Disclosing Party; (d) is released with prior written consent of the Disclosing Party; or (e) is disclosed to a Potential Investor in an anonymized, general, aggregated and/or summarized manner. Notwithstanding the foregoing, Confidential Information may be disclosed to either Party’s “Representatives” (defined herein as, with respect to either Party, its and its affiliates’ respective employees, officers, directors, agents, counsel, accountants, auditors and advisors).
Receiving Party understands that the Confidential Information may constitute Non-Public Information (“NPI”) as defined by and subject to the federal Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801 et seq., the Consumer Financial Protection Bureau’s Privacy Regulations, 12 CFR Part 1016, and Standards for Safeguarding Customer Information, 16 CFR Part 314 and other applicable federal and state privacy laws and regulations (collectively, the “NPI Rules and Regulations”) and agrees to comply with all applicable NPI Rules and Regulations and to cause all of its Representatives, to the extent possible, any other person or entity that receives the NPI to comply therewith.
Receiving Party agrees to establish, implement and maintain a comprehensive information security program that contains appropriate administrative, technical, and physical safeguards sufficient to ensure the security, confidentiality, integrity and appropriate disposal of all NPI. In the event that there is a breach of security of the Confidential Information, the Party that discovers such breach agrees to notify the other Party promptly following discovery, if NPI was, or is reasonably believed to have been acquired by any unauthorized person or third party.
3. Limitation on Use. The Receiving Party agrees not to use any Confidential Information for any purpose except in connection with its evaluation of the Potential Transaction. The Receiving Party agrees that it shall take all commercially reasonable measures to avoid disclosure and unauthorized use of the Confidential Information, including to the Parties’ Representatives. Without limiting the foregoing, the Receiving Party shall take at least those measures that it takes to protect its own Confidential Information. The Receiving Party agrees not to disclose any Confidential Information to third parties, except to those Representatives who have a need to know such Confidential Information in order to evaluate or engage in discussions directly related to the Potential Transaction and only after first apprising such Representatives of their obligation to treat such disclosed information as Confidential Information of the Disclosing Party. The Receiving Party shall be responsible for any breach of this Agreement by its Representatives. The Receiving Party shall not knowingly remove any indicia of confidentiality that appears on the Confidential Information. Unless otherwise prohibited by applicable law, or court or administrative order, the Receiving Party shall promptly notify the Disclosing Party in the event of any unauthorized use or disclosure of the Confidential Information. Notwithstanding the foregoing, in the event that the Receiving Party or any of its Representatives has a legal obligation to disclose any of the Confidential Information to comply with applicable law or regulatory requests (the “Legal Obligation”), then, to the extent legally permissible, the Receiving Party shall provide the Disclosing Party with (a) prompt notice of such Legal Obligation (to the extent permitted by applicable law or regulatory request) so that the Disclosing Party may seek a protective order or other appropriate remedy, and (b) reasonable cooperation, at the Disclosing Party’s sole cost and expense, in seeking such remedy or otherwise protecting the Disclosing Party’s rights in and to such Confidential Information. In the event Receiving Party is required to disclose Confidential Information, Receiving Party shall only disclose that portion of the Confidential Information that its legal counsel advises it is required to be disclosed in order to comply with Receiving Party’s Legal Obligation.
Notwithstanding anything in this Agreement to the contrary, preREO may compile, collect, copy, modify, distribute, publish, display, and use anonymized and aggregated transactional and performance data generated from or based on transactions contemplated hereunder and summary or derivative information based thereon for its analytical and other business purposes, including, without limitation, to report to third parties general trend and/or analytic information concerning the mortgage industry; provided that the Company and specific transactions (including counterparties) contemplated hereunder shall not be identified or be reasonably capable of being identified, directly or indirectly, as the source of such information.
4. Conduct Business. The Parties acknowledge and agree that notwithstanding anything herein to the contrary, this Agreement does not (i) restrict the ability of either Party or its Representatives to engage in its business (including developing and participating in additional lines of business), (ii) prevent a Party or its Representatives from competing with or against the other Party, and (iii) limit the Receiving Party’s or its Representatives’ use or application of any information or knowledge acquired without breach of this Agreement. Each Party further acknowledges and agrees that the other Party may already possess or have developed or market products, services, concepts, ideas or systems similar to or competitive with those of the other Party disclosed in the Confidential Information. In addition to the foregoing, the Receiving Party or its Representatives may be currently or in the future developing information, products, services, concepts, ideas and systems internally, or receiving information from other parties that may be similar to all or part of Disclosing Party’s Confidential Information. Accordingly, nothing in this Agreement shall be construed as a representation, warranty, covenant or declaration that Receiving Party or its Representatives will not develop (or has not developed) products, services, concepts, ideas or systems that, without violation of this Agreement, might compete with the products, services, concepts, ideas or systems contemplated by Disclosing Party’s Confidential Information.
5. Potential Investors. The Parties acknowledge and agree that notwithstanding anything herein to the contrary, this Agreement does not restrict the ability of either Party or its Representatives to provide information (not to include Confidential Information) relating to the Potential Transaction, in an anonymized, general, aggregated and/or summarized manner to potential investors which the Party reasonably believes would participate in the Potential Transaction, together with their advisors and potential financing sources (each, a “Potential Investor”).
6. Limitation of Legal Relationship; Disclaimer. The Parties agree and acknowledge that, other than as expressly stated herein, there is no legal relationship between them, and neither Party may obligate or bind the other under any circumstance. Additionally, nothing herein shall obligate the Disclosing Party or the Receiving Party to proceed with, accept or undertake any transaction not expressly set forth herein, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement at any time and for any reason. Nothing in this Agreement shall be deemed to create a fiduciary or agency relationship other than as specifically defined herein. In no event shall preREO be required by this Agreement to make decisions for the Company or to provide legal or accounting services in any respect. All final decisions with respect to acts of the Company, whether or not made pursuant to or in reliance upon information or advice furnished by preREO hereunder, shall be those of the Company, and preREO shall under no circumstances be liable for any expense incurred or loss suffered by the Company as a consequence of such decisions.
ALL CONFIDENTIAL INFORMATION PROVIDED BY EITHER PARTY HERETO IS PROVIDED “AS IS.” EXCEPT AS MAY BE OTHERWISE REFLECTED IN A DEFINITIVE AGREEMENT SIGNED BY BOTH PARTIES, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ACCURACY OR COMPLETENESS OF CONFIDENTIAL INFORMATION.
Receiving Party shall defend and indemnify Disclosing Party and each of its Representatives against any and all claims, losses, damages, liabilities, judgments, penalties, fines, forfeitures, reasonable legal fees and expenses, any and all related costs and/or expenses of litigation, administrative and/or regulatory agency proceedings, and any other costs, fees and expenses, incurred by or asserted against Disclosing Party or its Representatives arising out of or based upon (i) any breach of the terms of this Agreement by Receiving Party, or (ii) the Owner's willful misconduct, bad faith or gross negligence.
10. Non-Circumvention. Each Party may introduce the other Party to various third parties for the Potential Transaction. Should the introducing Party (“Introducing Party”) disclose to the introduced party (“Introduced Party”) the names and intentions of those third parties, then the Parties hereto further agree that the Introduced Party shall not circumvent the Introducing Party in any manner whatsoever with regards to each such third party or any affiliates, officers, directors, equity-holders or agents thereof.
11. Securities. Receiving Party hereby acknowledges that United States securities laws prohibit any person with material, non-public information about an issuer of securities from purchasing or selling securities of such issuer or, subject to certain limited exceptions, from communicating such information to any other person. Receiving Party will maintain reasonable policies and procedures, taking into account the nature of Receiving Party’s business, to ensure that its directors, officers and employees will not violate laws prohibiting trading on the basis of material NPI.
12. Miscellaneous. This Agreement shall be construed in accordance with the laws of the State of Illinois. Any legal action or proceeding relating to this Agreement will be instituted in state or federal court in Cook County, Illinois. Each Party agrees to submit to the jurisdiction of, and agrees that venue is proper in, the aforesaid courts, and waives, to the fullest extent permitted by law, any objection it has or hereafter may have to the venue of such proceeding, as well as any claim it has or may have that such proceeding is in an inconvenient forum. This document contains the entire agreement between the Parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. If any provision of this Agreement shall be held to be invalid or unenforceable, in whole or in part, the remaining provisions shall nevertheless remain in full force and effect as if the unenforceable portion or portions were deleted. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both Parties hereto. Neither this Agreement nor any rights or obligations hereunder shall be assignable, delegable or otherwise transferable in whole or part by either Party. It is understood that the terms of access by the Receiving Party or its Representatives to Confidential Information contained in any data room or website provided or arranged by the Disclosing Party or on its behalf in connection with the Potential Transaction herein shall be superseded by the understandings and agreements contained herein. Each Party shall bear its own costs and expenses expended or incurred in connection with the negotiation, execution and delivery of this Agreement, the discussions concerning the Potential Transaction and such Party’s compliance with the terms and conditions contained in this Agreement. Nothing in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between the Parties. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
13. Non-Solicitation. The Company agrees that it shall not directly or indirectly, for the term of this Agreement and for twelve (12) months after the date of termination of this Agreement, solicit any employee of preREO or its affiliates, successors and/or assigns, for the purposes of offering employment, unless expressly approved in writing by preREO.
14. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute the same agreement. A manually signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
15. Notice. Any notices required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate Party by personal delivery or by certified mail, postage prepaid, or a recognized overnight delivery service, at the address below or such other address as either Party may designate in writing:
If to preREO:
Attention: Jorge Newbery
440 S. LaSalle St., Suite 1110
Chicago, IL 60605