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Confidentiality Agreement (electronic)

Version 7 (AM)

December 7, 2022

CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement is entered into by the Person (defined below) registered 

with Seller (defined below), or with Seller’s independent contractor engaged to serve as its loan 

sale advisor, to bid on assets (“Bidder”), in favor and for the benefit of the Federal Deposit 

Insurance Corporation in its corporate capacity and in its capacity as receiver for various failed 

financial institutions (in any capacity, “Seller”). This Confidentiality Agreement is effective as of 

the date on which Bidder first clicks on the “I Agree” button at the end of this Confidentiality 

Agreement (the “Effective Date”). 

RECITALS

WHEREAS, from time to time, Seller offers for sale certain assets (the “Loans”) that Seller 

intends to transfer in a proposed sales transaction (the “Sale”); and

WHEREAS, in connection with the Sale, Seller is distributing or otherwise making available 

to prospective bidders, such as Bidder, among other things, the documents for the Sale of the Loans, 

all as they may be modified, amended, revised, or supplemented from time to time (the “Bid 

Package”), together with access to the Evaluation Material (defined below); and

WHEREAS, all capitalized terms in this Confidentiality Agreement that are not otherwise 

defined have the meaning assigned to such terms in the Bid Package; and

WHEREAS, Bidder has expressed interest in having Seller provide Bidder with the 

Evaluation Material for Bidder’s due diligence review; and

WHEREAS, in consideration of Seller’s furnishing Bidder with Evaluation Material, Bidder 

desires to enter into certain agreements regarding the Evaluation Material; and

WHEREAS, Bidder’s execution of this Confidentiality Agreement, without modification, is 

a prerequisite to receipt of, or access to, any Evaluation Material.

NOW, THEREFORE, in consideration of the foregoing, and in order to induce Seller to 

furnish the Evaluation Material to Bidder for its due diligence review, and for other good and valuable 

consideration, the receipt and sufficiency of which are hereby acknowledged, Bidder hereby 

acknowledges and agrees as follows:

1. Additional Definitions. For purposes of this Confidentiality Agreement, the following 

terms have the following meanings:

“Affiliate” means, with respect to any specified Person, (1) any other Person or Third Party

directly or indirectly controlling or controlled by or under common control with such specified 

Person, (2) any other Person or Third Party owning or controlling 10% or more of the outstanding 

voting securities, voting equity interests, or beneficial interests of such specified Person, or (3) any 

officer, director, partner, member, trustee, employee, or promoter of such specified Person or any 
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Confidentiality Agreement (electronic)

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Immediate Family Member of such officer, director, partner, member, trustee, employee, or 

promoter. For the purposes of this definition, the term “control” (including the phrases “controlled 

by” and “under common control with”) when used with respect to such specified Person means 

the possession, direct or indirect, of the power to direct or cause the direction of the actions, 

management, or policies of such specified Person, whether through the ownership of voting 

securities or interests, by contract or otherwise.

“Evaluation Material” means any information that Seller or Seller’s Representatives (as used 

hereafter in this Confidentiality Agreement, the term “Seller” includes, collectively, Seller and 

Seller’s Representatives, unless otherwise specifically noted) directly or indirectly furnish or make 

available to Bidder in connection with the Sale and all copies (electronic or otherwise) thereof and all 

notes, analyses, compilations, studies, or other documents, whether prepared by Bidder or Bidder’s 

Representatives (as used hereafter in this Confidentiality Agreement, the term “Bidder” includes, 

collectively, Bidder and Bidder’s Representatives, unless otherwise specifically noted), which include

or otherwise reflect any such information, provided that the term “Evaluation Material” does not 

include information that (1) is, or becomes, generally available to the public other than as a result 

of a disclosure by Bidder that results in a breach of this Confidentiality Agreement, (2) was in 

Bidder’s possession prior to its disclosure by Seller, or (3) becomes available to Bidder from a 

Person other than Seller, who, to the knowledge of the Bidder after due inquiry, is not otherwise 

bound by confidentiality obligations to Seller in connection with such information.

“Immediate Family Member” means, with respect to any individual, his or her spouse, 

parents, parents-in-law, grandparents, descendants, nephews, nieces, brothers, sisters, brothers-inlaw, sisters-in-law, children (whether natural or adopted), children-in-law, stepchildren, 

grandchildren, and grandchildren-in-law.

“Obligor” means any Person liable for the full or partial payment or performance of any 

Loan, whether such Person is obligated directly, indirectly, primarily, secondarily, jointly, or 

severally, as a borrower, a guarantor, a surety, or otherwise, with respect to any Loan.

“Person” means any individual, corporation, partnership (general or limited), limited 

liability company, limited liability partnership, firm, joint venture, association, joint-stock 

company, trust, estate, unincorporated organization, governmental or regulatory body, or other 

entity. 

“Representatives” means, with respect to any Person, the Affiliates of such Person, and 

its and their (1) directors, officers, partners, owners, nominees, and employees, and (2) agents, 

contractors, investment bankers, financial experts, potential financing sources, legal counsel, 

accountants, or other advisors that are working on the Sale.

“Third Party” means any bidder, potential bidder, firm, equity investor, servicer, rating 

agency, lender, Person, or third party other than Bidder.

2. Term. This Confidentiality Agreement will terminate as to Bidder with respect to Loans 

purchased, directly or indirectly, by Bidder in connection with the Sale, but only upon closing of the 
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purchase of such Loans as provided in any document contained in the Bid Package for the Sale. This 

Confidentiality Agreement will terminate as to Bidder with respect to Loans not purchased, directly 

or indirectly, by Bidder upon the later of (1) the date that is five years after the Effective Date, or (2) 

the date that all copies of the Evaluation Material held or controlled by Bidder have been destroyed 

in accordance with Section 6.

3. Limitation on Use. Bidder must use the Evaluation Material solely for the purpose of 

evaluating a purchase of the Loans in connection with the Sale and for no other purpose.

4. Limitation on Further Due Diligence. Bidder will not contact or attempt to contact any 

Obligor or Obligor’s Representatives (as used hereafter in this Confidentiality Agreement, the term 

“Obligor” includes, collectively, Obligor and Obligor’s Representatives, unless otherwise specifically 

noted), unless (1) prior to initiating any contact with any Obligor other than pursuant to clause (2) of 

this Section 4, Bidder obtains the written consent of Seller, which consent may be withheld in Seller’s 

sole and absolute discretion; or (2) (a) Bidder has an ongoing business relationship with any Obligor, 

which relationship pre-dates the date of this Confidentiality Agreement, or (b) any Obligor initiates

contact with Bidder to establish a business relationship, including, without limitation, the refinancing 

of any Loan, in which case Bidder may communicate with Obligor as identified in clause (1) or (2) 

in the ordinary course of Bidder’s business, so long as Bidder does not use or disclose any of the 

Evaluation Material in its communications with Obligor or disclose Bidder’s involvement in the Sale. 

5. Limited Access. Without the prior written consent of Seller, to be granted or withheld in 

Seller’s sole and absolute discretion, Bidder will not disseminate or divulge any of the Evaluation 

Material to any Person, other than to: (1) Bidder’s Representatives, and (2) to the extent not covered 

by clause (1), any Third Parties who are assisting Bidder in its review or analysis of the Loans, 

provided, however, that in each case (a) such Third Party (i) has a need for access to the Evaluation 

Material for the purpose of assisting or advising Bidder in the evaluation of or in the making of a Bid 

in connection with the Sale, (ii) has been advised by Bidder of the confidential nature of such 

Evaluation Material, and has been directed by Bidder, and has agreed with Bidder, to treat such 

Evaluation Material confidentially in a manner so as to comply with all the terms of this 

Confidentiality Agreement, and (iii) has entered into an agreement, or is otherwise legally obligated 

by law or under the terms of such Third Party’s engagement or relationship with Bidder obligating 

such Third Party to use and maintain the confidentiality of the Evaluation Material in a way that is 

materially consistent with this Confidentiality Agreement, a copy of which executed agreement, or 

evidence satisfactory to Seller of such obligation, will be provided upon request to Seller; and (b)

Bidder will be liable to Seller for any failure on the part of any such Person, including, without 

limitation, Bidder’s Representatives, to comply with Bidder’s obligations under this Confidentiality 

Agreement. 

6. Confidentiality; Destruction of Documents. Bidder agrees that Bidder will take 

reasonable precautions to ensure that all Persons to whom any of the Evaluation Material is disclosed 

keep the Evaluation Material confidential. At a minimum, Bidder must treat the Evaluation Material 

according to the same internal security procedures and with the same degree of care regarding its 

secrecy and confidentiality as similar information belonging to Bidder is treated within its 

organization and in compliance with all applicable laws, including, without limitation, laws 
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relating to privacy. In addition, Bidder acknowledges that (1) each part of the Evaluation Material 

is subject to the confidentiality provisions of 12 C.F.R. Part 309 and may include customer 

information subject to the Right to Financial Privacy Act, and (2) any unauthorized use of the 

Evaluation Material may result in the imposition of criminal penalties under 18 U.S.C. § 641. 

Bidder is responsible for any breach of the terms of this Confidentiality Agreement by Bidder or

any other Person to whom Bidder provides access to the Evaluation Material. Bidder agrees to take 

all reasonable measures to restrain Bidder’s Representatives and all other Persons to whom Bidder 

provides access to the Evaluation Material from prohibited or unauthorized disclosure or use of 

any Evaluation Material. With respect to any Loans not directly or indirectly purchased by Bidder 

pursuant to the Sale, Bidder must destroy, and must ensure that all Persons to whom any of the 

Evaluation Material has been disclosed destroy, all copies of the Evaluation Material, unless 

otherwise directed by Seller, or unless doing so would violate: (x) record-keeping requirements 

mandated by applicable law or regulation, or (y) internal Bidder record maintenance policies and 

controls. Any of the Evaluation Material not destroyed because of clause (x) or (y) of this Section 6

remains confidential and subject to this Confidentiality Agreement. Bidder will inform Seller 

immediately of any improper disclosure of any of the Evaluation Material, and of any breach of any 

provision of this Confidentiality Agreement, which may come to Bidder’s attention, unless such 

notification would itself violate any applicable law, regulation, or court order. 

7. Other Disclosure. To the extent that Bidder is legally compelled to disclose any of the 

Evaluation Material pursuant to the requirements of any action, suit, subpoena, arbitration, or other 

dispute resolution process, or other legal proceedings, whether civil or criminal, including, without 

limitation, before any court or administrative or legislative body, Bidder must notify Seller within 

one business day after its knowledge of such legally required disclosure so that Seller may seek an 

appropriate protective order or waive Bidder’s compliance with this Confidentiality Agreement. 

Notice must be both by telephone and in writing. In the absence of a protective order or waiver, Bidder 

may disclose the relevant Evaluation Material if, in the written opinion of its outside counsel (which 

opinion must be provided to Seller prior to disclosure pursuant to this Section 7), failure to disclose 

such Evaluation Material would subject Bidder to liability for contempt, censure, or other legal 

penalty or liability. 

8. Liability. If Seller determines that Bidder has breached any provision of this 

Confidentiality Agreement (including, without limitation, any failure by any Person to whom any of 

the Evaluation Material is disclosed to maintain such Evaluation Material as confidential in 

accordance with this Confidentiality Agreement), then Seller may, in its sole and absolute discretion,

exercise any or all legal or equitable rights or remedies against Bidder to which Seller is entitled on 

account of such breach. Seller will not be deemed to have waived any of its rights or remedies on 

account of its failure, delay, or forbearance in exercising any such right or remedy in a particular 

instance. Bidder agrees that, due to the unique nature of the Evaluation Material, there can be no 

adequate remedy at law for any breach or threatened breach of Bidder’s obligations hereunder and, 

accordingly, (1) Seller is entitled to equitable relief, including, without limitation, injunction, in 

the event of any breach of the provisions of this Confidentiality Agreement (or any threat thereof), 

in addition to whatever remedies Seller might have at law, and (2) Bidder will not oppose the 

granting of such relief and hereby irrevocably waives any requirement for the security or posting 

of any bond in connection with such relief. In addition to all legal and equitable remedies, Seller
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may, in its sole and absolute discretion, also choose to refuse to consider selling the Loans to Bidder 

and may refuse to allow Bidder to conduct a due diligence review on, or otherwise participate in the 

sale of, any other Loans offered for sale by Seller now or in the future.

Bidder may have registered in order to gain more information to bid on Loans. In connection 

with any such registration, Bidder has: (1) executed and delivered a Security Deposit Confidentiality 

Agreement, and (2) delivered the sum of $50,000 to Seller as security for the performance and 

observance by Bidder of all of its obligations under this Confidentiality Agreement. Such sum will

be held by Seller, pursuant to the Security Deposit Agreement, as security in connection with 

Bidder’s performance, compliance, and observance of any and all of the terms, conditions, or 

covenants of this Confidentiality Agreement.

9. Indemnification. Bidder must defend, indemnify, and hold harmless Seller from and 

against any and all claims, demands, causes of action, losses, damages, liabilities, judgments, costs,

and expenses (including, without limitation, attorneys’ fees) asserted against or incurred by Seller

(whether as a result of a third-party claim asserted against Seller or otherwise) as a result of any 

violation of, or failure to comply with, the provisions of this Confidentiality Agreement by Bidder 

(including, without limitation, any failure by any Person to whom any of the Evaluation Material is 

disclosed to maintain such Evaluation Material as confidential in accordance with this Confidentiality 

Agreement). 

10. Release of Seller. Bidder acknowledges and understands that some or all of the 

Evaluation Material may have been prepared by parties other than Seller, and further acknowledges 

and understands that Seller makes no representation or warranty whatsoever, express or implied or 

by operation of law, with respect to the content, completeness, or accuracy of the Evaluation Material 

except as otherwise provided in documents contained in the Bid Package. Bidder hereby releases 

Seller from any and all claims, demands, causes of action, losses, damages, liabilities, costs, and 

expenses (including, without limitation, attorneys’ fees) asserted against or incurred by Bidder by 

reason of Bidder’s reliance on or knowledge of the Evaluation Material or for any other reason arising 

in connection with the Sale.

11. Governing Law; Waiver of Jury Trial. This Confidentiality Agreement will be 

governed by and construed in accordance with the federal law of the United States. To the extent 

that federal law does not supply a rule of decision, this Confidentiality Agreement will be governed 

by and construed and enforced in accordance with the laws of the State of New York, without 

reference to any conflict of laws rule or principle that might refer the governance or construction 

to the law of another jurisdiction. Bidder hereby irrevocably agrees that any action or proceeding 

against it arising out of or in any manner relating to this Confidentiality Agreement may be brought 

in United States District Court in and for the District of Columbia. Bidder expressly and 

irrevocably assents and submits to the exclusive jurisdiction of such court in any such action or 

proceeding. Bidder and Seller each irrevocably agrees to waive any rights it may have to a 

jury trial in any action or proceeding against it arising out of or relating in any manner to 

this Confidentiality Agreement. Nothing in this Confidentiality Agreement will require any 

unlawful action or inaction by any party. In the event that any of the provisions of this 

Confidentiality Agreement is held by a court or other tribunal of competent jurisdiction to be 
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illegal, invalid, or unenforceable, such provision will be limited or eliminated to the minimum 

extent necessary so that this Confidentiality Agreement otherwise remains in full force and effect. 

Bidder and Seller intend that the terms and provisions of this Confidentiality Agreement be given 

the broadest possible interpretation to protect the interests of Seller under this Confidentiality 

Agreement.

12. Capacity of Seller. Bidder acknowledges that this Confidentiality Agreement runs to the 

benefit of Seller as receiver as well as to Seller in its corporate capacity, and that Seller in any capacity 

is entitled to exercise any and all of Seller’s rights or remedies under this Confidentiality Agreement. 

13. Notices. All notices, requests, demands, and other communications required or permitted 

to be given or delivered to Seller under or by reason of the provisions of this Confidentiality 

Agreement must be given in accordance with the method provided in the applicable section of this 

Confidentiality Agreement. Notices required to be provided in writing must be given by (1) email, or 

(2) a hard copy (certified or registered mail [postage prepaid] or delivered by hand or by a nationally 

recognized air courier service). In any case, such notice or other communication must be directed to 

the following:

Federal Deposit Insurance Corporation

Manager, Asset Marketing

600 N Pearl Street, Suite 700

Dallas, Texas 75201

Email: AssetMarketing@FDIC.gov 

and

Federal Deposit Insurance Corporation

Frederic A. Ortiz

Counsel, Section Chief, Asset Disposition

600 N Pearl Street, Suite 700

Dallas, Texas 75201

Email: FrOrtiz@FDIC.gov

14. Miscellaneous. This Confidentiality Agreement contains the entire understanding and 

agreement between Bidder and Seller relating to the receipt, use, and disclosure of the Evaluation 

Material and supersedes any and all prior understandings and agreements with respect thereto. This 

Confidentiality Agreement has been duly authorized, executed, and delivered by Bidder and 

constitutes a legal and valid obligation of Bidder enforceable in accordance with its terms. 

15. Electronic Execution – Bidder. By clicking on the “I Agree” button below (or when 

electronically reaffirming this Confidentiality Agreement at any time and from time to time), Bidder 

evidences its intent to enter into this Confidentiality Agreement and agrees that it is bound by all the 

terms and conditions of this Confidentiality Agreement.