NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement (“Agreement”) is dated as of ______, 2010 by and between______(“Company”) and ______, its subsidiaries, affiliates, successors or assigns (collectively, “______”). ______and Company shall collectively be referred to as the “Parties,” and individually referred to as a “Party.”

RECITALS

  1. ______and Companyhave engaged in and are continuing to engage in discussions relating to the potential sale of performing loans in Florida(collectively, the “Transaction”). During the course of the discussions, a Party (the “Receiving Party”) may have become and may continue to become privy to, have access to, receive or inspect certain information, documents, analysis, proprietary information, developments, processes, pricing schedules, trade secrets or know-how, technical data, software, hardware configuration information, strategies, customer information, financial and business information relating to the other Party (the “Disclosing Party”) and its business, assets, operations, guidelines, prospects, customer information, clients, products, administration, marketing methods or plans, or financial condition, and other matters which the Disclosing Party deems confidential (the “Confidential Information”).
  1. Each Party, upon the terms, covenants, and conditions contained in this Agreement, are willing to allow the other Partyaccess to such Confidential Information.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants made herein and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Arch Bayand Companyagree as follows:

  1. Confidentiality. The Receiving Party agrees not to use any of the Confidential Information for any purpose other than the exclusive purpose stated herein. Except as otherwise expressly provided herein, the Receiving Party agrees that the Confidential Information will be kept confidential by the Receiving Party and its directors, officers, employees, agents, partners or representatives, including without limitation any accountants, attorneys, and financial advisors (collectively, its “Representatives”). The Receiving Party may disclose the Confidential Information to its Representatives who need to know such information for the purpose stated herein and who are informed of the confidential nature of the Confidential Information. The Receiving Party agrees that it will not, and will direct its Representatives not to, disclose to any person any Confidential Information. Without the prior written consent of the Disclosing Party, neither the Receiving Party nor its Representatives shall disclose to any person the fact that the Receiving Party has received any of the Confidential Information. The Receiving Party will be responsible for any breach of this Agreement by its Representatives. The Receiving Party agrees, at its own expense, to take all reasonable measures, including but not limited to court proceedings, to restrain its Representatives from unauthorized disclosure or use of the Confidential Information and shall be responsible for any breach of this Agreement by its Representatives.
  1. Non-Interference. Without the prior written consent of the other Party, neither Party shall make any contact of any nature with any target or underlying entities or parties for any purpose (other than in the ordinary course of the Party’s business) in conflict with the business intentions of the other Partywith respect to the Transaction.
  1. Gramm-Leach-Bliley. The Receiving Party acknowledges that the Disclosing Partywill be disclosing to it Confidential Information which will include nonpublic personal financial information, as such term is defined in Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. Section 6801, et seq., as it may be amended from time to time, the regulations promulgated thereunder or other federal or state laws governing the privacy of information relating to individual persons. Receiving Party agrees it shall comply with all federal, state and local laws, rules, regulations and ordinances governing or relating to privacy rights in connection with its performance under this Agreement including, without limitation, the Gramm-Leach-Bliley Act and regulations promulgated thereunder (“GLB”). Receiving Party shall implement physical and other security measures designed to (a)ensure the security and confidentiality of the “nonpublic personal information” regarding “customers” and “consumers” (as those terms are defined in GLB), (b)protect against any threats or hazards to the security and integrity of nonpublic personal information, and (c)protect against any unauthorized access to, or use of, nonpublic personal information. Receiving Party represents and warrants that it has implemented appropriate measures to meet the objectives of Section 501(b) of the GLB and of the applicable standards adopted hereafter. Receiving Party agrees to immediately notify the Disclosing Party’s senior manager responsible for the Agreement in the event of a security breach or suspected security breach. Receiving Party shall promptly notify the Disclosing Partywhen it becomes aware of any unauthorized access to such personal information or if Receiving Party becomes the subject of any government, other enforcement or private proceeding relating to its data handling practices. Receiving Party must certify the destruction or return of all Confidential Information at the end of the Agreement.
  1. Exclusions. Confidential Information shall not include and this Agreement shall not apply to any information which: (a) is or becomes generally available to the public, without violation of any obligation of confidentiality by the Receiving Party, (b) becomes available to the Receiving Party on a non-confidential basis from a source that Receiving Party knows or reasonably believes is not prohibited from disclosing such Confidential information to the Receiving Party by legal, contractual, or fiduciary obligations, or (c) is independently developed by the Receiving Party without use, directly or indirectly, of the Confidential Information received from the Disclosing Party. If the Receiving Party becomes legally obligated, or receives a subpoena or other legal demand, to disclose any Confidential Information, the Receiving Party shall, if legally permissible, notify the Disclosing Partyin writing immediately, shall cooperate in good faith with the Disclosing Partyin any effort by the Disclosing Partyto seek a protective order or other appropriate remedy, and shall use commercially-reasonable efforts to protect the confidential, privileged and proprietary status of the Confidential Information.
  1. No Representations or Warranties. Each Partyacknowledges and agrees that: (a)neither itnor any of its directors, officers, stockholders, partners, affiliates, employees, attorneys, or agents has made or herein makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, (b) none thereof shall have any liability resulting from the use of the Confidential Information, errors therein, or omissions therefrom, and (c) neither Party is entitled to rely on the accuracy or completeness of the Confidential Information and each Partyshall rely solely on the representations and warranties made toit bythe other Partyin any definitive agreement regarding the Transaction. All copies of Confidential Information shall be returned to the Disclosing Partyimmediately upon its request.
  1. Transaction Subject to Definitive Agreement. Each Partyacknowledges and agrees that no contract or agreement providing for the Transaction or requiring a joint venture between the Parties shall be deemed to exist unless and until a definitive agreement has been executed and delivered between such parties. Each Party hereby waives, in advance, any claims (including, without limitation, for breach of contract) in connection with the Transaction unless and until it has entered into such a definitive agreement. Each Partyfurther acknowledges and agrees that unless and until such a definitive agreement has been executed and delivered, neither Partynor any of its directors, officers, stockholders, partners, affiliates, employees, attorneys, or agents shall have any legal obligation of any kind whatsoever with respect to the Transaction by virtue of this Agreement. The obligations of the Parties hereunder shall continue for a period of two (2) years from the date of this Agreement or until such time as a definitive agreement has been executed and delivered between the Parties, in which case the terms of the definitive agreement shall supersede the terms of this Agreement. For purposes of this Agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or proposal on a Party’s part.
  1. Injunctive Relief. Each Partyagrees that in the event of a breach or threatened breach by the Receiving Party of the provisions of this Agreement, the Disclosing Partymay have no adequate remedy in money damages and, accordingly, without the requirement to post a bond, shall be entitled to seek an injunction against such breach and/or to compel specific performance of this Agreement, in addition to any other legal or equitable remedies available to it.
  1. General Provisions. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. In the event of litigation or arbitration relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement may be executed in counterparts, each of which shall be deemed an original for all purposes and all of which shall together constitute a single agreement binding on all parties. This Agreement (a) shall be governed and construed according to the laws of the State of California, (b)may not be assigned by either Party without the prior written consent of the other, (c)is the entire agreement between the parties and supersedes all prior and contemporaneous oral and written agreements and discussions, and (d) may be amended only by an agreement in writing.

Dated as of the date first above written.

“COMPANY”:
______, LLC
By:______
______
[Printed Name and Title] / “COMPANY”:
______, LLC
By:______
______
[Printed Name and Title]

GRC/Legal/D8.0/001.3(7-25-08)1