THIS CONSULTING, FEE AND NON-CIRCUMVENTION NON-DISCLOSURE ...

IRREVOCABLE CONSULTING-FEE AND NON-CIRCUMVENTION / NON-DISCLOSURE AGREEMENT and Letter of Intent THIS CONSULTING-FEE AND NON-CIRCUMVENTION / NON-DISCLOSURE AGREEMENT (“Agreement”) is made effective this ___day of ________, 200_ by and between the following parties: Collectively Referred to as the “Seller” – 33% of 3% Selling Bank / Compiler Collectively Referred to as the “Intermediaries” – 33% of 3% Names here “Buyer” Company name, address, mandate name – 33% of 3% I, ______________, PASSPORT NUMBER ____________________ OF THE UNITED STATES OF AMERICA, REPRESENTING __________________________ AS BUYER’S MANDATE AND AUTHORIZED SIGNATORY, USING LICENSED ESCROW AGENT, HEREBY CONFIRM WITH FULL CORPORATE AND LEGAL AUTHORITY, AND UNDER PENALTY OF PERJURY, THAT WE ARE READY, WILLING AND ABLE TO BUY AN REO POOL WITH GOOD, CLEAN, CLEAR AND UNENCUMBERED FUNDS OF NON-CRIMINAL ORIGIN UNDER THE CONDITIONS DESCRIBED HEREIN. For purposes of this Agreement, all provisions that pertain to the Buyer, including but not limited to, those regarding confidentiality, non-usurpation, non-circumvention, shall also apply to the Buyer’s Rep. WITNESSETH WHEREAS, the Intermediaries have established relationships with banks, financial institutions, and other owners (collectively referred to herein as “Bank” or “Banks”) of real estate owned properties, performing and non-performing financial instruments and mortgages, builder wholesale properties, and other financial instruments and assets (collectively referred to herein as “REO”), and WHEREAS, the Intermediaries have agreed to work with the Buyer’s Rep and/or Intermediaries, to facilitate the purchase and sale of REO from one or several Banks to the Buyer, and WHEREAS, the Parties (including their associates, agents, affiliates and/or representatives collectively or individually referred to as “Affiliates” herein) contemplate entering into or participating in one or more transactions (“Transaction” or “Transactions”) concurrently herewith and/or hereafter during the term of this Agreement, and WHEREAS, the Parties mutually recognize that in the course of consummating Transactions, each may learn from the other (including from their Affiliates) the identity, address, and/or telephone/facsimile numbers of clients, brokers, buyers, sellers, financiers, intellectual property (hereinafter referred to as “Confidential Sources”) and/or information relating to bank accounts, transaction codes, participating bank and or entities (hereinafter referred to as “Confidential Information”) which the other Party possesses and may have acquired at substantial cost or effort, and WHEREAS, the Parties desire to work with, and not circumvent, improperly disclose and keep confidential one another respecting each other’s Confidential Sources and Confidential Information, Consulting-Fee and Non-Circumvention / Non-Disclosure Agreement and Letter of Intent Page 1 of 7 IRREVOCABLE CONSULTING-FEE AND NON-CIRCUMVENTION / NON-DISCLOSURE AGREEMENT and Letter of Intent NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: Article 1 Agreement 1. Agreement. The Buyer agrees to work with the Intermediaries listed above, to present a single or several REO portfolios to the Buyer that meets the Buyer’s acquisition criteria. Intermediaries’ services shall include offering counsel, if requested, pertaining to the desirability of particular assets and the availability of financing; if requested, suggesting acquisition and exit strategies; and offering input if desired on purchase agreements. Buyer acknowledges that Intermediaries are not acting as an attorney, tax advisor, surveyor, and/or appraiser in this matter and the Buyer has been advised to seek separate legal counsel, tax advisors, surveyors, appraisers and/or other third parties for advice on these matters. Intermediaries will not obtain or order products or services from outside sources (e.g. surveys, soil tests, title reports, inspections) without the prior written consent of Buyer. Buyer agrees to pay for all costs for products or services so approved and obtained by both Parties. Article 2 Non-Circumvention / Confidentiality / Non-Disclosure 2. Non-Circumvention. Neither Party (including Affiliates of such Party) will attempt, directly or indirectly, to contact the other Parties’ Confidential Sources, transaction banks on matters of and to the Transaction, or contact or negotiate with a Confidential Source or make use of any Confidential Information of the other Party, except through such other Party or with the express written consent of such other Party as to each such contact. The Parties or their Affiliates shall not contact, deal with, or otherwise become involved in any Transaction with any corporation, partnership, individual, any banks, trust or lending institutions which have been introduced by the other Party without the permission of the introducing Party. Any violation of this covenant shall be deemed an attempt to circumvent such other Party, and the Party so violating this covenant shall be liable for damages in favor of the circumvented Party. 3. Pre-Existing Relationship. Both the Intermediaries and the Buyer recognize and acknowledge that the Buyer may have had, currently has, or will have, a relationship, business or personal, formal or informal, of whatever nature, with the Banks involved in a Transaction. Notwithstanding that prior, existing or future relationship, the Buyer agrees that is shall strictly adhere to and abide by all of the terms and conditions of this Agreement, particularly but not exclusively, those pertaining to the non-circumvention, non-usurpation, confidentiality, non-disclosure and compensation. For any Transaction that is the subject of the business between the Parties and pertains to this Agreement, the Buyer shall work through the Intermediaries and, should a Transaction be successfully consummated, the Buyer shall be obligated to pay the compensation detailed in this Agreement. Furthermore, the Buyer agrees that any similar transaction that it undertakes with a Bank that is involved in a Transaction shall be covered under this Agreement for any future transaction with the same intermediaries as stated in this Agreement in the event of a successful Transaction. For purposes of this Agreement, a transaction that is similar to a Transaction covered under this Agreement shall include, but is not limited to, the purchase of a REO portfolio. 4. Confidentiality. Any information (“Evaluation Materials”) with respect to any Transaction provided to the Parties and/or its representatives (“Accepting Parties”) will be used solely for the Consulting-Fee and Non-Circumvention / Non-Disclosure Agreement and Letter of Intent Page 2 of 7 IRREVOCABLE CONSULTING-FEE AND NON-CIRCUMVENTION / NON-DISCLOSURE AGREEMENT and Letter of Intent purpose of evaluating the Transaction by the Parties. The Evaluation Materials will not be used or duplicated for any other purpose. Accepting Parties shall keep all Evaluation Materials strictly confidential; provided, however, that such Evaluation Materials may be delivered to such persons or entities who because of their involvement with the Transaction need to know such information for the purpose of giving advice with respect to, or consummating, the Transaction (all of whom are collectively referred to as “Related Parties”); provided further, that any such Related Parties shall be informed by Accepting Parties of the confidential nature of such information and shall be directed by Accepting Parties (and Accepting Parties shall cause such Related Parties) to keep all such information in the strictest confidence and to use such information only in connection with the Transaction and in accordance with the terms of this Agreement. 5. No Usurpation. The Transaction and the Evaluation Materials that the Intermediaries will present, or has presented, to the Accepting Parties is a product of extensive research, cost, time and money, and is the substance of the Intermediaries’ business. The Buyer, its representatives, Affiliates and its Affiliated Parties shall not usurp the Transaction and information contained in the Evaluation Materials to the detriment of the Intermediaries. Such usurpation shall materially, substantially and irreparably damage the Intermediaries. Consequently, the Buyer, it representatives, its Affiliates and the Accepting Parties agree that they will not use any information contained in the Evaluation Materials or any other information learned from its engagement or involvement with the Intermediaries. Buyer agrees that during the term of this Agreement any and all inquires and/or negotiations on behalf of Buyer relating to the acquisition of any assets introduced to Buyer by Intermediaries shall be negotiated and handled by and through the introducing Intermediaries. Buyer agrees that any specific orders placed with Intermediaries will not be duplicated and placed with any other Party. 6. Return of Evaluation Materials. If, at any time, the Parties elect not to proceed with the Transaction, or, upon request of Intermediaries, Accepting Parties will promptly return to the Intermediaries all Evaluation Materials received by Accepting Parties, whether received before or after the date of this Agreement, without retaining copies thereof. 7. No Disclosure. Accepting Parties shall not (i) disclose the fact that discussions or negotiations are taking place concerning the Transaction by the Parties or any of the terms thereof, or (ii) conduct any discussions, negotiations or make any inquiries concerning the Transaction with any other person or entity (including tenants) except for Intermediaries and the Intermediaries’ Parties, except as may be expressly permitted elsewhere in this Agreement and, in such case, only in strict accordance with the provisions hereof. In the event that any Accepting Parties or Related Parties become legally compelled to disclose all or any part of the Evaluation Materials, Accepting Parties will provide the Intermediaries prompt written notice, so that Intermediaries and Buyer may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. All Accepting Parties acknowledge that damages may be inadequate to protect against breach of any of these provisions and therefore agree in advance to the granting of injunctive relief as described above. In the event that such protective order or other remedy is not obtained, or that any party to this agreement waives compliance with the provisions of the Agreement, in such instance, Accepting Parties will furnish only that portion of the Evaluation Materials which is legally required and will exercise best efforts to obtain reliable assurance that confidential treatment will be accorded the Evaluation Materials.. Consulting-Fee and Non-Circumvention / Non-Disclosure Agreement and Letter of Intent Page 3 of 7 IRREVOCABLE CONSULTING-FEE AND NON-CIRCUMVENTION / NON-DISCLOSURE AGREEMENT and Letter of Intent 8. Contact Strictly Limited. The Parties, the Accepting Parties, and any or all of persons, parties or entities associated with and/or working with or for the Buyer and Intermediaries shall communicate only to and exclusively with the representing Parties. 9. No Representations by Intermediary Parties. The Intermediaries do not make any representations or warranties as to the accuracy or completeness of the Evaluation Materials or that the actual results will conform to any projections contained therein. Intermediaries expressly disclaim any and all liability for representations or warranties, express or implied, contained in the Evaluation Materials, or in any other written, oral or other communications transmitted or made available to Accepting Party by the Intermediaries or the Intermediaries’ Parties. 10. No Obligation. Intermediaries and or Buyer is under no legal obligation of any kind whatsoever with respect to the Transaction by virtue of this Agreement, the delivery of any Evaluation Materials, any discussions concerning the Transaction or otherwise, unless and until a binding written agreement is executed and delivered by all parties thereto. 11. Indemnity; Enforcement. Parties agree to indemnify and hold harmless the buyer and the Intermediaries from any damage, loss, cost or liability (including, without limitation, actual damages, consequential damages, legal fees and the costs of enforcing this indemnity) arising out of or resulting from any unauthorized use or disclosure by the Parties and the Accepting Parties of any Evaluation Material. The Parties also acknowledge that monetary damages would be both incalculable and an insufficient remedy for any breach of this Agreement and that any such breach would cause either side irreparable harm. Accordingly, the Parties agree that, in the event of any breach, threatened breach or other violation of this Agreement by the Parties and the Accepting Parties, in addition to any other remedies at law or in equity they may have, shall each be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. All rights and remedies of the buyer and Intermediaries herein and at law or in equity for any breach of this Agreement by the Parties and/or the Accepting Parties shall be cumulative and may be exercised singly or concurrently and from time to at either party’s discretion. Article III Compensation 12. REO Portfolio and Fee. The Buyer is considering purchasing REO portfolios through the Intermediaries valued at least ________ USD). The Buyer shall pay a THREE percent (3.0%) fee (“Fee”) based on the final purchase price paid at the closing of the REO portfolio. 13. Compensation. The parties entitled to share the Fee upon a successful Transaction between the Buyer and one or more of the Sellers/Banks presented by the Intermediaries shall be divided into the following parts: Each side is entitled to a 1/3 (ONE THIRD) of the total of all fees paid, to be shared as follows: “Intermediaries” (1/3 of total fees paid) and the “Seller’s Rep”(1/3 of total fees paid) and the “Buyer’s Rep” (1/3 of total fees paid). The Fees shall be earned, due and payable immediately upon the closing of any escrow or other similar event whereby title to the REO portfolio is assigned transferred or otherwise in any way becomes the property of the Buyer. 14. Compensation Payment. The Parties shall sign escrow instructions directing the seller escrow holder or title company to pay all sides. Each party shall assign a paymaster for their group and Consulting-Fee and Non-Circumvention / Non-Disclosure Agreement and Letter of Intent Page 4 of 7 IRREVOCABLE CONSULTING-FEE AND NON-CIRCUMVENTION / NON-DISCLOSURE AGREEMENT and Letter of Intent shall not interfere in any other group’s payments. The Buyer shall instruct escrow as to the identity of its paymaster. Each party shall be solely responsible for the payments to the members of their group. 15. Three Intermediary Groups: There shall be no more than 4 (four) intermediary groups. The four intermediary groups, as listed below, shall share equally in the total commissions paid to the intermediary side (1/3 of the total commission). These 1/3 of the total commission shall be split again equally in 1/3 to each intermediary group (33% of 1% of the total purchase price to each intermediary group). Each intermediary group shall submit their own sub-fee agreements into escrow, to declare the disbursements of funds to the members of their individual groups. Article III Miscellaneous 16. Term. This Agreement shall be in effect on a case by case basis, renewing every time that the same buyer purchases any product from the same seller and or with the same intermediary groups. 17. Conflicts of Interest. Buyer acknowledges that Intermediaries may represent other clients desirous of purchasing any and all REO portfolios. Intermediaries shall preserve any confidential information disclosed by any buyer, and shall not disclose the existence of, or the terms of, any offer prepared on behalf of one client to another client. 18. Disclaimer. Intermediaries are not guaranteeing the suitability of any asset for the Buyer’s purposes. Buyer is not relying on Intermediaries to determine the environmental or other physical condition of the assets. Intermediaries shall not be liable for inaccuracy of any information/data provided by third parties in connection with the assets. Intermediaries makes no representations or warranties of any nature whatsoever, and Buyer is not relying on anything presented by or through the Intermediaries, regarding any aspect of the REO portfolio including but not limited to the merchantability of title, suitability for any purpose, transferability of title and physical condition of any part of the REO portfolio. Buyer acknowledges that it is its responsibility to perform any and all due diligence on the REO portfolio and is making the decision to buy or not to buy based on its sole and unfettered discretion. Finally, the Buyer and Intermediaries agree to indemnify and hold each other harmless against any and all claims made by any person, corporation, association or entity claiming any ownership interest or any matter whatsoever in all or part of the REO portfolio. 19. Taxes. Neither Party makes any representations or warranties regarding the tax consequences of the proposed investments, if any, in any jurisdiction covered by this Agreement. The parties agree that each accepts its liability for taxes, imposts, levies or charges that may arise. 20. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by facsimile transmission, telexed or mailed by registered or certified mail (return receipt requested), postage prepaid, to the parties at the addresses noted above. 21. Entire Agreement. This Agreement represents the entire agreement between the Parties and supersedes all existing contracts and agreements previously executed between the Parties, and any representations, either written or oral, by one Party to another with respect to the subject matter hereof. This Agreement shall be modifiable only in writing, duly executed by all Parties. 22. Binding. This Agreement shall be for the benefit of, and be binding upon, the signatories hereof, their agents, directors, officers, representatives, heirs, personal representatives, successors and assigns. Consulting-Fee and Non-Circumvention / Non-Disclosure Agreement and Letter of Intent Page 5 of 7 IRREVOCABLE CONSULTING-FEE AND NON-CIRCUMVENTION / NON-DISCLOSURE AGREEMENT and Letter of Intent 23. Governing Law. This Agreement shall be construed and governed by the laws of a court of competent jurisdiction. 24. Severability. The provisions of this Agreement are severable, and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially enforceable provisions, to the extent enforceable, shall nevertheless be binding and enforceable. 25. Assignment. Neither Party may assign this Agreement without the prior written consent of all the other Parties. 26. Informed, Voluntary Execution of the Agreement. The undersigned signatories to this Agreement acknowledge and affirm that they fully understand their obligations with respect to this Agreement and the obligations undertaken hereto; that they have had adequate time and opportunity to consult with legal counsel of their choice prior to the execution of this Agreement; that they are fully informed; and that each has executed this Agreement freely and voluntarily, without reservation or exception. 27. Authorization. The undersigned signatories to this Agreement acknowledge and affirm that they are duly authorized signatories and have full legal capacity to initiate and execute all legal obligations arising from this Agreement. The signatories whose endorsements appear herein hereby represent that they each are acting with full corporate authority, and with full knowledge and at the direction of the officers and/or Board of Directors of their respective companies, if any. 28. Counterparts. The signatures of the parties duly authorized representatives shall be affixed as indicated below. The parties stipulate and agree that this Agreement may be signed in counterparts and executed by each Party as set forth above. When each counterpart, duly executed, and delivery thereof has been made to each Party respectively, this Agreement shall then be considered to be an original, binding agreement between the parties, whether received in hand, delivered by mail or courier, or transmitted via electronic facsimile transmission. The parties further stipulate and agree that duly executed electronic facsimile transmission copies shall be acceptable and shall be considered to be as valid, legal and binding upon the parties as the originals thereof. IN WITNESS WHEREOF, the parties irrevocably agree to all of the terms and conditions of the Agreement and in formal acknowledgement thereof have set their hands and seals, as signified by their respective signatures which appear below. [signatures on the following page] Consulting-Fee and Non-Circumvention / Non-Disclosure Agreement and Letter of Intent Page 6 of 7 IRREVOCABLE CONSULTING-FEE AND NON-CIRCUMVENTION / NON-DISCLOSURE AGREEMENT and Letter of Intent Intermediary Group #1 Sign: Name: Date: ______ By and for::– It’s Authorized Signatory Intermediary Group #2 Sign: Name: By and for:–Authorized Signatory Intermediary Group #3 Date: ______ Sign: Name: _________________ Date: ______ By and for::– It’s Authorized Signatory Buyer / Buyer’s Mandate acknowledge this agreement in its entirety. Sign: Name: –Authorized Signatory Date: ______ Passport Number: Consulting-Fee and Non-Circumvention / Non-Disclosure Agreement and Letter of Intent Page 7 of 7