EXIM_proposed_NDA_form_-_Aug_16_2016_(2).pdf

EXIM Bank proposed NDA form – 8-16-16

MUTUAL CONFIDENTIALITY AGREEMENT

This Mutual Confidentiality Agreement (“Agreement”) is entered into by and between ___________________. (“Company”) and the Export-Import Bank of the United States (“EXIM”), effective as of _______, 2016.

WHEREAS, as part of a contemplated transaction (the “Transaction”) between the parties, EXIM and Company may provide each other with financial, accounting and other proprietary or otherwise confidential information, data and processes; and

WHEREAS, in connection with the contemplated Transaction and discussions that may take place between the Company and EXIM, each party (a “Recipient”) may receive from the other party (“Disclosing Party”) Confidential Information (as defined below) of Disclosing Party; and

WHEREAS, the Company and EXIM mutually desire to set forth the terms and conditions of their agreement for maintaining the confidentiality of such information and certain related matters;

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. “Confidential Information” as used in this Agreement shall include all information provided by

Disclosing Party to Recipient, except as noted herein, whether in oral, written, electronic, graphic, or other format, including without limitation: (a) Disclosing Party’s financial and accounting information; (b) information regarding Disclosing Party’s, or such party’s corporate affiliate’s, financial condition or performance, business operations, plans, strategies or techniques, know how, products or services, pricing, past or current customer information, systems or system strategies, and marketing and distribution plans, methods or techniques; (c) any other information that is marked “confidential,” “proprietary,” or with like words, or that is summarized in writing as being confidential prior to or promptly after disclosure to the other party; (d) any and all related information, research and data, including but not limited to such information, research and data that may pertain to third-party borrowers, buyers, exporters, lenders and other participants in loans made by EXIM or in credit transactions guaranteed or insured by EXIM; (e) any and all designs, ideas, concepts, intelligence, engineering, techniques, processes, methodologies, and technology embodied in any of the foregoing; (f) any rating analysis performed by Company for the benefit of EXIM; (g) any reinsurance structures or risk management solutions created by Company and designed to facilitate or enhance the Transaction; (h) any underwriting and pricing information, and information relating to loss data, models, modeling results, actuarial analyses and market capacity; and, (i) all designs, ideas, concepts, intelligence engineering, techniques, processes, methodologies, and technology embodied in any of the foregoing.

2. Confidential Information shall not include information which: (a) is or becomes generally available to the public other than as a result of disclosure by Recipient in violation of this Agreement; (b) was available to or already known by Recipient on a non-confidential basis prior to its disclosure by Disclosing Party; (c) is developed by Recipient independently of any information acquired from Disclosing Party; or (d) becomes available to Recipient on a non-confidential basis from a source other than Disclosing Party, provided that Recipient has no reason to know that such source is or may be bound by a confidentiality agreement with Disclosing Party. Notwithstanding any other provision of this Agreement, nothing in this Agreement shall prevent disclosures of any Confidential Information pursuant to a court order, subpoena, other requirement of any governmental or regulatory authority, or Congressional Committee request, provided that Recipient promptly notifies Disclosing Party of any such order, requirement or request, to the extent permitted by law..

3. Each party agrees to exercise reasonable care to protect and prevent unauthorized disclosure of the other party’s Confidential Information. Recipient of such Confidential Information will not, and will not permit any of its affiliates, officers, directors, employees, agents or representatives (collectively “Agents”) to, directly or indirectly, (a) report, publish, distribute, disclose, or otherwise disseminate the Confidential Information, or any portion thereof, to any third party (except as necessary for purposes of participating in or supporting the Transaction, provided that the third party is given a copy of this Agreement and agrees in writing to be bound by it), and (b) use the other party’s Confidential Information, or any portion thereof, for its own benefit or for the benefit of any of its Agents or any third party for any purpose (except as necessary for purposes of participating in or supporting the Transaction), except as expressly authorized in writing by Disclosing Party. Disclosure of Confidential Information by a Recipient may be made to, but shall be limited to, those of its officers, directors, employees or Agents who have a “need to know” the Confidential Information for purposes of Recipient’s participation in the Transaction. The names and contact information of all third parties to which Confidential Information is distributed pursuant to the parenthetical set forth in sub-section “a” of this paragraph shall be provided to the Disclosing Party along with a copy of this Agreement signed by such third party.

4. The parties agree that impermissible disclosure or use of Confidential Information or other breach or violation of any of the provisions of this Agreement may cause irreparable harm to Disclosing Party and that remedies at law may be inadequate to protect against breach of this Agreement.

The parties hereby agree in advance that Disclosing Party shall have the right, in addition to all other available remedies, to injunctive relief without proof of actual damages in order to prevent such acts, attempts and violations. Nothing herein shall prevent either party from competing in good faith for the business of any customer or customers, provided it does not use for such purpose any Confidential Information of the other party obtained in connection with the Transaction.

5. Each party understands and agrees that its access to and use of Confidential Information of the Disclosing Party is at the sole control and discretion of such Disclosing Party and that this Agreement does not establish any rights to continued access to or use of the Confidential Information furnished by the Recipient. Upon request of Disclosing Party, Recipient shall return or destroy all Confidential Information of Disclosing Party which is in its possession or subject to its control, except for archival and backup copies that are not readily available for use and business or government records required by law to be retained, which Recipient will continue to treat as confidential pursuant to the terms of this Agreement. Additionally, upon request, such destruction of information shall be certified in writing to the Disclosing Party by an authorized official of the Recipient.

6. Nothing in this Agreement shall obligate either party to enter into any contractual or other business relationship with the other party or to otherwise participate in the Transaction. The parties hereto agree that this Agreement, including all of the covenants and undertakings of EXIM and Company hereunder, shall remain in full force and effect in accordance with its terms, whether or not either party participates in the Transaction, and after completion of the Transaction.

7. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective legal representatives, successors and permitted assigns. This Agreement may not be assigned by either party without the prior written consent of the other.

8. It is understood and agreed that any failure or delay in exercising any right granted in this Agreement shall not operate as a waiver of the right, nor shall any single or partial exercise of any right preclude any other or further exercise of the right or the exercise of any other right granted in this Agreement.

9. If any provision of this Agreement shall be finally determined to be invalid or unenforceable by any court of competent jurisdiction, such provision shall be deemed to be severed from this Agreement, but every other provision of this Agreement shall remain in full force and effect. With respect to any such provision so determined to be invalid or unenforceable, any court with jurisdiction over the parties and subject matter hereof shall have all necessary authority to rewrite such provision in order to provide for the enforceability thereof to the maximum extent permissible under law, and the parties hereto agree to abide by such court’s determination.

10. All provisions set out in this Agreement shall survive the termination of the business relationship between the parties and the termination of this Agreement.

11. All Confidential Information is provided by Disclosing Party “AS IS” without any warranty, express, implied or otherwise, regarding its accuracy or completeness or its usefulness for any purpose.

12. The validity, construction, performance, enforcement, and remedies of or relating to this Agreement, and the rights and obligations of the parties hereunder, shall be governed by the laws of the State of New York, without regard to the conflict of laws, rules, or statutes of any jurisdiction. Both parties consent to jurisdiction and venue in the Federal Courts in the State of New York, and Washington D.C.

13. This Agreement constitutes the entire agreement between the parties with regard to the sharing or exchange of Confidential Information and supersedes any and all prior or contemporaneous oral or written understandings, agreements, or arrangements between the parties with respect to the subject matter hereof. Any modification or waiver of this Agreement or any of its provisions shall not be binding upon either party unless made in writing and signed by both parties.

14. This Agreement, and the matters described in this Agreement shall not constitute Confidential Information nor be considered a “confidential transaction” within the meaning of United States Department of the Treasury Regulations Section 1.6011-4.

WAIVER OF JURY TRIAL. EXIM AND COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND

INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING

OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT, ANY RELATED

DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY

BE DELIVERED IN THE FUTURE IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM

ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY

SUCH SUIT, ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT

AND NOT BEFORE A JURY.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above by their duly authorized representatives. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.

_____________ EXPORT-IMPORT BANK OF THE UNITED

STATES

By: By:

Name: Name:

(Please Type or Print) (Please Type or Print)

Title: Title:

Third-party Agreement.

By signing below, the third-party below evidences its agreement to abide by the terms and conditions of the foregoing Agreement. The individual signing below represents that she or he is fully authorized to execute this Agreement on behalf of the named third-party.

_____________________[Proper legal name of Third-party]

By:_________________________

Print Name: __________________

Title: ________________________

Date:________________________