Due Diligence Agreement
Due Diligence Agreement
Due Diligence Agreement
This Letter Agreement (the “Agreement”) confirms that the [AAA] (referred to herein as
“[AAA]”) has engaged [BBB] (“[BBB]”) as its valuation agent to assist [AAA] in connection
with the sale of a portfolio of non-performing loans, in (referred to herein as the
“Transaction”), to a Special Purpose Corporation (“SPC”). The SPC and certain related
companies (AMC and RC) will be formed specifically for this Transaction and owned [•] %
by [AAA] and [•] % by an affiliate of [CCC] (“[CCC]”). [BBB] will assist [AAA] with this
Transaction pursuant to the following terms and conditions:
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3.2 The fees payable to [BBB] pursuant to this agreement are in consideration for the
various services described in Section 2 hereof, After commencement of the engagement
[AAA] is permitted to make additions or deletions to the original Portfolio equal to or less
than [•] percent of OPB of the Portfolio without incurring any additional fees. To the extent
[BBB] is requested by [AAA] to perform additional due diligence or other financial advisory
services not specifically set forth in this agreement, such fees shall be mutually agreed upon
by [BBB] and [AAA] in writing, in advance, depending on the level and type of services
required, and shall be in addition to the fees described above.
3.3 In addition to any fees that may be payable to [BBB] hereunder, [AAA] shall
reimburse [BBB] for all reasonable out-of-pocket expenses of [BBB] expatriate personnel
including but not limited to travel and transportation, accommodations, meals, document
production and courier costs not to exceed US$ [•] in the aggregate.
Except as otherwise stated in this paragraph, [AAA] will be responsible for all other costs
incurred in connection with the Transaction, including fees and expenses of other advisors
such as legal counsel. In consultation with [AAA], [BBB] will select and manage the legal
advisors for this Transaction. [BBB] will retain real estate valuation experts, at its own
expense, to evaluate selected collateral provided as security for [AAA]’s loans. The real estate
experts to be hired and the number and selection of collateral to be evaluated will be
determined by [BBB], with consideration of input from [AAA].
3.4 All amounts payable to [BBB] under the terms of this Agreement are net of Value Added
Tax(“VAT”), withholding tax, and any other similar taxes (“Taxes”). All amounts charged by [BBB]
will be invoiced together with Taxes where appropriate. All invoicing will be in US Dollars, except
that expenses incurred in [Currency] will be invoiced in [Currency].
3.5 [AAA] shall pay such additional amounts to [BBB] as may be necessary in order that
every payment of expenses payable or reimbursable (including real estate valuation experts)
hereunder after deduction or withholding for or on account of any present or future tax,
assessment or other governmental charge (including, without limitation, VAT) imposed upon
or as a result of such payment to the [Name of the Country] or any taxing authority thereof or
any other jurisdiction from which such payment or reimbursement may be made, will not be
less than the amount provided for herein to be paid or reimbursed by [AAA].
4. Termination of Transaction
4.1 Work under this agreement will be performed with the degree of skill and care that is
required by current, good and sound professional procedures and practices, and in
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conformance with generally accepted professional standards.
[BBB] and [AAA] expect the valuation work will require a period of [•] days to complete. The
[•] day period will begin one week from the day both parties execute this agreement. This
timing estimate assumes adequate assistance is provided by [AAA] personnel including the
preparation of loan files and other information relevant to the valuation of the portfolio.
If the completion of the valuation is delayed due to unforeseen circumstances, [BBB] and
[AAA] will mutually agree to the timeframe for the extension of the valuation and work
together to avoid additional unforeseen delays.
4.2 Each of the parties shall have the right to terminate this agreement. Such termination
will be effective [•] days after non-terminating party’s receipt of written notice of termination
from the terminating party.
4.3 If [AAA] or [BBB] elects to terminate this agreement, [BBB] shall be entitled to bill to
[AAA] the lesser of: (1) Its actual professional fees (at [BBB]’s normal hourly billing rates)
and all out-of-pocket expenses incurred to date (including all amounts due to third party
appraisers and up to US$ [•] of expenses incurred by [BBB]’s expatriate employees); or (2)
the amount provided in Paragraph 3.1.
4.4 Payment of all amounts due under Section 4 will be due upon receipt of [BBB]’s
invoice which will credit all professional fee payments and any expense reimbursement
payments made by [AAA] through the date of termination.
5. Non-Disclosure of Information
5.1 Except as may be required by law, any opinions or advice (written or oral) rendered
by [BBB] pursuant to this Agreement are intended solely for the benefit and use of [AAA]
(and its directors, management and attorneys), will be treated by the parties hereto as
confidential and may not be disclosed publicly in any manner without the prior approval of
[BBB], which approval shall not be unreasonably withheld. [AAA] will be permitted to
present to [CCC], any or all written materials produced by [BBB] for this Transaction.
5.2 [AAA] will provide all financial and other information reasonably requested by [BBB]
for the purposes of rendering services pursuant to this agreement. Except as may be required
by law or court process, all non-public information provided by [AAA] will be treated as
confidential and will not, without the prior consent of [AAA], be disclosed to any third parties
in the absence of appropriate assurances of confidentiality, and [BBB] agrees that it will not
make any use thereof except in connection with its services hereunder for [AAA]. Upon the
completion of the Transaction, [BBB] shall return to [AAA] all the documents, data,
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information and other materials which belong to [AAA]. [BBB]’s obligation of confidentiality
hereunder shall survive the termination of this Agreement for a reasonable period of time.
5.3 [BBB] may rely, without independent verification, on the accuracy and completeness
of all information furnished by [AAA] or any other party or potential party to any Transaction
contemplated by this Agreement.
6.2 No Indemnified Party shall have any liability to [AAA] or any other person in
connection with the services rendered pursuant to the Agreement except for any liability for
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losses, claims, damages or liabilities finally judicially determined by a court having
jurisdiction to have resulted directly from such Indemnified Parties’ intentional misconduct or
gross negligence.
7. Miscellaneous
7.1 The Agreement shall be binding upon and inure to the benefit of [AAA] and [BBB]
and their respective successors and assignees. However, neither party shall have the right to
assign or delegate its rights or obligations under this Agreement to any party other than the
affiliates of either [AAA] or [BBB] without the written consent of the other. Nothing
expressed or implied in this Agreement is intended or should be construed to give to any
person or corporation other than [AAA], [BBB], the other Indemnified Parties referred to in
Section 6 of this Agreement and their respective successors or assignees, any rights or
remedies under or by reason of this Agreement.
7.2 No partner, director, officer, employee, agent, shareholder or controlling person of [BBB]
shall be subject to any personal liability whatsoever in connection with this Agreement.
7.3 The invalidity or un-enforceability of any part of a provision or any provision of this
Agreement shall not affect the validity or enforceability of the remaining part of the same
provision or any other provision of this Agreement, which shall remain in full force and effect
pursuant to the terms thereof.
7.4 This Agreement incorporates the entire understanding of the parties regarding the
subject matter hereof, supersedes all previous Agreements or understandings regarding the
same, whether written or oral, and may be modified only by an express writing executed by
the parties hereto.
7.5 Any controversy, dispute or claim arising out of the Parties’ rights duties and
obligations shall be submitted first to conciliation and, if necessary, then to arbitration in
accordance with Attachment A to this Agreement.
7.6 With prior consent from [AAA], [BBB] may, at its own expense, place announcements
in financial and other newspapers and periodicals describing its services in connection with
the Transaction.
7.7 This Agreement shall be governed by and construed in accordance with the laws of
[Name of the Country].
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If the foregoing correctly sets forth our understanding, please sign the acceptance below and
return an executed copy of the Agreement to us.
[BBB]
By :
Name : [•]
Title : [•]
ACCEPTED:
[AAA]
By : Date :
Name : Title :