CONFIDENTIALITY AGREEMENT

This NDA is entered by and between:

Party A, a body corporate incorporated pursuant to the laws of the country as referenced in the body of the digital acknowledgement "Party A")

- and -

LENDINGARCH FINANCIAL INC., a body corporate incorporated pursuant to the laws of the Province of Alberta (hereinafter referred to as "LendingArch")

 

WHEREAS each of the parties hereto wishes to explore its interest in completing a Transaction;

AND WHEREAS in connection with the evaluation of a possible Transaction, Party A has requested that certain Confidential Information be disclosed to it by or on behalf of LendingArch;

AND WHEREAS LendingArch, as a Disclosing Party hereunder, is willing to disclose certain Confidential Information to Party A, as a Recipient hereunder, on the condition that such information be retained in confidence by the Recipient and dealt with only as provided herein;

NOW THEREFORE this Agreement witnesseth that in consideration of the mutual premises herein provided and the disclosure of Confidential Information hereunder, the parties hereto agree as follows:

  1. In this Agreement the following words and phrases shall have the following meanings unless the context otherwise requires:
    1. "Affiliate" has the meaning of "affiliate" under the Alberta Business Corporations Act;
    2. "Confidential Information" means any and all information acquired by a Recipient or its Representatives, which is or may be either applicable to or related in any way to the assets, business or affairs of a Disclosing Party which shall include, without limiting the generality of the foregoing, all information, written or oral, stored on any computer or electronic, magnetic or optical data storage system, furnished by the Disclosing Party or its Representatives to, or otherwise obtained by, such Recipient or its Representatives, including but not limited to all information, memoranda, financial information, environmental reports, evaluations, legal opinions, names of shareholders, names of partners or joint venture partners, and business arrangements, together with all analyses, compilations, studies or other documents prepared by such Recipient or its Representatives containing or based upon, in whole or in part, such information. Confidential Information in respect of a Disclosing Party shall not include Non-proprietary Information in respect of such Disclosing Party and includes information, if any, previously made available to such Recipient or its Representatives by the Disclosing Party or its Representatives;
    3. "Disclosing Party" means LendingArch or its Affiliates, as applicable;
    4. "Non-proprietary Information" refers to information in respect of a Disclosing Party:
      1. which at the time of its disclosure is in, or which thereafter enters (and then only after such date), the public domain other than as a result of any act or omission by the Recipient or its Representatives or anyone to whom the Recipient or its Representatives transmitted such information;
      2. which is or becomes lawfully known to the Recipient or its Representatives on a non-confidential basis and not in contravention of applicable law from a source (other than the Disclosing Party or its Representatives) that is entitled to disclose the information;
      3. which is already in the possession of the Recipient or its Representatives or is lawfully acquired by them (other than from the Disclosing Party or its Representatives), or
      4. which such Disclosing Party has provided its prior written consent for the disclosure of by the Recipient or its Representatives;

provided that any combination of the information which comprises part of the Confidential Information shall not be deemed to be Non-proprietary Information merely because individual parts of that information were within the public domain or within the prior lawful possession of the Recipient or its Representatives unless the combination itself was within the public domain or in the prior lawful possession of the Recipient or its Representatives or was so lawfully received by them;

    1. "Recipient" means Party A and its Affiliates;
    2. "Representatives" means, in respect of a party hereto, the directors, officers, employees, advisors, consultants, Affiliates, bankers (investment and commercial), lawyers and accountants of such party;
    3. "Review" means a Recipient's review of the Confidential Information and Non-proprietary Information relating to a Disclosing Party for the purposes of considering a Transaction; and
    4. "Transaction" means any proposed transaction or transactions, directly or indirectly involving a joint venture, partnership, service based relationship, engagement , or general exploration of a business relationship between the parties.
  1. Party A as a Recipient covenants and agrees with LendingArch as a Disclosing Party that each Recipient shall:
    1. ensure that the Confidential Information in respect of the Disclosing Party is kept in strict confidence and is not used for any purpose whatsoever, other than for the purpose of conducting the Review and negotiating a possible Transaction;
    2. safeguard and strictly control the dissemination of the Confidential Information and ensure that the Confidential Information in respect of the Disclosing Party is not released or disclosed to any person other than to its Representatives who have a need to know the same in connection with a possible Transaction. Each Recipient agrees that it shall be responsible for any breach of this Agreement by any of its Representatives. If the Confidential Information in respect of a Disclosing Party is disclosed to any Representatives of a Recipient, the Recipient shall inform such Representatives at the time of disclosure of the Confidential Information's confidential nature and the terms of this Agreement and such Representatives shall agree to be bound by the terms hereof and, without limiting the foregoing, each Recipient agrees to take, at its sole expense, all reasonable measures (including but not limited to court proceedings) necessary to restrain such Recipient's Representatives from taking any action that would result in a breach of this Confidentiality Agreement or any covenant of confidentiality, forthwith after receiving written notice from the Disclosing Party informing the Recipient of such breach or potential breach and requesting that the Recipient take such action. Each Recipient shall keep a list of all of its Representatives to whom any Confidential Information in respect of a Disclosing Party has been delivered and shall provide such list to the Disclosing Party immediately upon request;
    3. not disclose any Confidential Information in respect of the Disclosing Party to any person other than in accordance with the terms of this Agreement, except if the Recipient or its Representatives are required by law to otherwise disclose any Confidential Information in respect of the Disclosing Party. Prior to any such disclosure, however, the Recipient shall immediately provide to the Disclosing Party written notice thereof so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance by the Recipient with this clause. In the event that any court or administrative body requires disclosure of the Confidential Information in respect of the Disclosing Party, then the Recipient or any of its Representatives required to provide such disclosure will furnish only that portion of the Confidential Information in respect of the Disclosing Party which is legally required and, further, shall each exercise their reasonable commercial efforts to obtain reasonable assurance that confidential treatment will be accorded such Confidential Information; and
    4. at the request of the Disclosing Party, return all documents and material provided hereunder and all copies of other reproductions thereof, as well as all notes, summaries, memoranda, reports, analyses and compilations and all documents prepared by or in possession of the Recipient or its Representatives relating to the Confidential Information in respect of the Disclosing Party (in all cases whether printed, electronic, magnetic or otherwise), or at the Disclosing Party's direction certify in writing that all such documents, materials, notes, summaries, memoranda, reports, analyses and compilations were destroyed, provided that the Recipient shall have the option to destroy rather than to return any documents, materials, memoranda, reports, analyses, compilations, notes, notations or summaries of Confidential Information in respect of the Disclosing Party made by it or its Representatives which may contain information of a confidential nature to the Recipient.
  1. Party A as a Recipient acknowledges and agrees with LendingArch, as a Disclosing Party, that:
    1. the Confidential Information in respect of the Disclosing Party is provided to the Recipient to acquaint it with the Disclosing Party, the Disclosing Party's technology and the business and operations of the Disclosing Party and the provision of the Confidential Information in respect of the Disclosing Party by the Disclosing Party or its Representatives to other interested parties does not render such Confidential Information as Non-proprietary Information;
    2. the Recipient will rely upon its own investigations, due diligence and analyses in evaluating a possible Transaction and in satisfying itself as to all matters relating to the Disclosing Party and its assets, liabilities, business and operations;
    3. without prejudice to the terms and conditions of any eventual agreement relating to a possible Transaction, neither the Disclosing Party nor any of their Representatives make any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information in respect of the Disclosing Party and that the Recipient is and will be relying upon its own investigations, due diligence and analyses in evaluating, and satisfying itself as to all matters relating to the Disclosing Party and their business, affairs and assets or otherwise in any way related to a possible Transaction. Only such representations or warranties that are contained in a definitive agreement with respect to a possible Transaction, when, as and if executed and subject to such conditions or limitations or restrictions as may therein be specified, shall have any legal effect;
    4. without prejudice to the terms and conditions of any eventual agreement relating to a possible Transaction, neither the Disclosing Party nor any of its Representatives or their respective directors, officers, employees or agents shall have any liability to the Recipient or any of its Representatives resulting from any use of the Confidential Information in respect of the Disclosing Party by the Recipient or any of its Representatives;
    5. neither Party A nor any of its Representatives will contact or attempt to contact or otherwise communicate in any way with (i) any Representative or shareholder of the Disclosing Party or its Affiliates; or (ii) any other person that the Recipient or its Representatives knows has any agreement or relationship with the Disclosing Party or any of its Affiliates; in respect of a possible Transaction or in respect of Confidential Information, or, once an engagement has been established between Party A and Disclosing Party, in respect of a possible transaction, without in each case the prior consent of an officer of the Disclosing Party, or such other person or persons as such an officer may designate, being obtained; and
    6. (i) certain of the Confidential Information may constitute material facts that have not been generally disclosed within the meaning of applicable securities laws; (ii) the Recipient and its Representatives should consider themselves in a special relationship with the Disclosing Party by virtue of the acquisition of Confidential Information pursuant to this Agreement; and (iii) the Recipient and its Representatives will comply with all applicable securities laws in such regard, including, without limitation, that the Recipient and its Representatives will not make use of any Confidential Information in connection with any trade of securities of the Disclosing Party nor communicate such information to any other persons ("special relationship" and "material fact" having the same meanings in this paragraph as under the Securities Act (Alberta)).
  1. During the term of this Agreement, Party A will not, without the prior written consent of LendingArch, solicit for hire or employment, directly or indirectly, any officer, employee or full‑time consultant of LendingArch with whom it has had contact in connection with the Review or about whom it has acquired information during the Review. For the purposes of this clause, “solicit” shall not include a solicitation of any officer, employee or full‑time consultant who is solicited: (a) following execution of a definitive agreement with respect to a Transaction; (b) by advertising in a newspaper or periodical of general circulation; or (c) by an employee or executive search firm acting on behalf of a party where the party did not instruct or encourage such solicitation.
  2. This Agreement shall not be construed as granting expressly or by implication during its term or thereafter any rights with respect to any Confidential Information disclosed pursuant to this Agreement (other than as provided hereby). It is understood and agreed by Party A as a Recipient that no failure or delay by LendingArch as a Disclosing Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise of any right (equitable or otherwise), power or privilege hereunder.
  3. Without limitation and in addition to any other rights LendingArch may have against Party A as a Recipient arising by reason of any breach thereof, each Recipient hereby agrees to and shall:
    1. be liable to the Disclosing Party and its Representatives for all claims, liabilities, damages, costs, losses and expenses whatsoever (including legal, accounting and other professional costs, expenses, fees and disbursements, with legal fees on a solicitor-client basis) which the Disclosing Party may suffer, sustain or incur; and
    2. indemnify and save harmless the Disclosing Party and its Representatives from and against any and all claims, liabilities, damages, costs, losses and expenses which any third party may suffer, sustain or incur;

in respect of all matters or things which may arise out of any act or omission directly or indirectly related to any breach by such Recipient or its Representatives of this Agreement or resulting from the unauthorized use or disclosure of the Confidential Information in respect of the Disclosing Party by such Recipient or its Representatives including, without limitation, damages, costs, losses and expenses which the Disclosing Party or its Representatives may suffer, sustain or incur as a result of any breaches by such Recipient or its Representative of the requirements of the Securities Act (Alberta). Each Recipient acknowledges and agrees that the Disclosing Party is constituted as trustee of the Recipient's covenants under this paragraph 6 for the benefit of the Disclosing Party's Representatives and that the Disclosing Party shall be entitled to enforce such covenants on behalf of such persons.

  1. Each party acknowledges and agrees that no agreement providing for a Transaction shall be deemed to exist unless and until a definitive agreement with respect thereto has been executed and delivered. Each party hereto agrees that the other party hereto reserves the right, in its sole discretion, to reject any and all proposals made with respect to a possible Transaction and to terminate discussions and negotiations, if any, with the other party at any time. Each party hereto further acknowledges and agrees that the entering into of this Agreement by the other party hereto or any approval granted hereunder does not create any obligation of any kind whatsoever with respect to any Transaction by virtue of this Agreement or any other written or oral expression with respect to such a Transaction except in the case of this Agreement, for the matters specifically agreed to herein and does not constitute the agreement of the other party hereto to agree to or recommend any possible Transaction; nor, except as provided in paragraph 10 hereof, does it restrict the rights of the other party hereto to solicit or to provide any information to any other persons in respect of a possible transaction with such other party. Each party hereto further acknowledges and agrees that the entering into of this Agreement by the other party hereto does not obligate the other party hereto to deliver and provide to the other party or any of its Representatives any Confidential Information in respect of the other party hereto.
  2. Party A is aware and acknowledges that the Confidential Information in respect of the Disclosing Party is sensitive to the Disclosing Party's business and of importance thereto and this Agreement shall remain in force and effect for an indefinite periodfrom the date hereof (regardless of termination) notwithstanding that the Confidential Information in respect of the Disclosing Party may have been returned or copies thereof destroyed prior to the expiration of such time period.
  3. Party A agrees that the Disclosing Party will be irreparably damaged if any provision of this Agreement is not performed by the Recipient or its Representatives in accordance with its terms and that monetary damages would not be sufficient to remedy any breach by the Recipient or its Representatives of any term or provision of this Agreement and each Recipient further agrees that the Disclosing Party shall be entitled to equitable relief, including injunctive and specific performance, in the event of any breach hereof and in addition to any other remedy available at law or in equity. Each Recipient further agrees to waive any requirement for the deposit of security or posting of any bond in connection with any equitable remedy.
  4. If any provision of this Agreement is wholly or partially unenforceable for any reason, such unenforceability will not affect the enforceability of the balance of this Agreement and all provisions of this Agreement shall, if alternative interpretations are applicable, be construed so as to preserve the enforceability hereof.
  5. All notices, requests, demands, consents, waivers and other communications given hereunder shall be in writing, marked "Private and Confidential", and shall be deemed to have been duly given if delivered by hand or by sending same by facsimile communication or other similar forms of communication to the following addresses:
    1. If to Party A, to:
      As per Schedule A
    1. if to LendingArch, to:
      LendingArch Financial Inc,
      4500 Bankers Hall East, 855 2 Street SW,
      Calgary, AB T2P 4K7
      Attention: Paul Hadzoglou
      email: [email protected]

Any such notice, request, consent, demand, waiver or other communication shall: (i) if delivered, be deemed to have been given or made at the time of delivery; and (ii) if sent by fax or other similar form of communication, be deemed to have been given or made at the time in which it was successfully transmitted as evidenced by automatic confirmation of receipt.

  1. This Agreement expresses the entire agreement between the parties hereto with respect to the communication and delivery of Confidential Information and shall be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement is not assignable by either party hereto without the prior written consent of the other party hereto.
  2. No waiver by any party hereto of any provision hereof shall be effective unless in writing and such waiver shall only relate to the matter or occurrence specifically identified therein and shall not extend to any other matter or occurrence.
  3. This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta (except those provisions relating to conflict of laws principles) and the courts of such Province shall have jurisdiction to entertain applications for injunctive relief and all other actions arising in connection with this Agreement.
  4. This Agreement may be exercised in counterparts that together shall be deemed to constitute one valid and binding agreement and delivery of counterparts may be effected by means of facsimile transmission.
  5. The parties reserve the right to assign all rights under this Agreement including, without limitation, the right to enforce all of the terms contained herein.
© Copyright 2022 | LendingArch Financial USA Inc.
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram