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PRODUCT/APPLICATION CONFIDENTIALITY AGREEMENT

 

To:  Party Countersigning Below

Gentlemen:

This Confidentiality Agreement (the "Agreement") is made in connection with the submission of an ________________________________________Application (the  "Application") by the  Party Countersigning Below (the "Applicant") to the "Underwriter".  In order for the Underwriter to make an assessment of the Applicant in connection with the possible issuance of an insurance policy, the Applicant has provided the Underwriter with certain Confidential Information (as defined below).  As a condition to the Applicant furnishing such information, the Underwriter agrees to treat any such Confidential Information which is furnished to the Underwriter by or on behalf  of the Applicant or members of its management in accordance with the provisions of this Agreement.  The Applicant understands that the Confidential Information provided to the Underwriter is incorporated into and deemed a part of the Application.  Nothing herein shall in any manner alter, amend or abrogate the representations and warranties made by the Applicant as set forth in the Application.

As used herein, "Confidential Information" means all data, reports, interpretations, forecasts, agreements and records and all other information, whether written, oral or otherwise, containing or otherwise reflecting information concerning the Applicant, its affiliates and subsidiaries which is not available to the general public and which the Applicant(including any member of its management) specifically designates in writing as such and provides to the Underwriter in connection with the Application, including but not limited to any information obtained by meeting with representatives or personnel of the Applicant or its subsidiaries.

In consideration of the Applicant providing the Underwriter with Confidential Information, the Underwriter agrees that all Confidential Information will be held and treated by the Underwriter, its directors, officers, employees, advisers, financial advisors, agents or representatives (collectively, "Representatives") in confidence and will not, except as hereinafter provided, without the prior written consent of  the Applicant, be disclosed by the Underwriter or its Representatives in any manner whatsoever, in whole or in part, and will not be used by the Underwriter or its Representatives other than in connection with consideration of the Application; provided, however, that nothing herein shall prohibit the Underwriter from using the Confidential Information in any litigation between the Underwriter and the Applicant, or in any litigation concerning the terms or conditions of any policy issued to the Applicant.

Confidentiality Agreement

Notwithstanding the foregoing, the following will not constitute "Confidential Information" for purposes of this Agreement:

(A) Information which was already in the Underwriter's possession prior to the date  hereof and which was not acquired or obtained from the Applicant (including  without limitation from members of its management);

(B) Information which is obtained by the Underwriter from a third person who insofar  as is known to the Underwriter, (i) is not prohibited from transmitting the   information to the Underwriter by a contractual, legal, or fiduciary obligation to or  on behalf of the Applicant, and (ii) has not obtained such information wrongfully;  and

(C) Information which is or becomes generally available to the public other than as a  result of disclosure by the Underwriter or any of its Representatives in violation of  a contractual, legal or fiduciary obligation of the Underwriter or Representatives to  the Applicant.

In the event that the Underwriter is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand, or other process) to disclose any Confidential Information, the Underwriter will provide the Applicant with immediate written notice of any such request or requirement so that the Applicant may seek an appropriate protective order, seek with the Underwriter's cooperation to narrow the request or demand or waive compliance with the provisions of this Agreement.  If, failing the entry of a protective order or the receipt of a waiver hereunder, the Underwriter is, in the opinion of counsel, compelled to disclose Confidential Information, the Underwriter may disclose only that portion of the Confidential Information, which counsel advises in writing that the Underwriter is compelled to disclose, and the Underwriter will exercise best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.  In any event the Underwriter will not oppose any action by the Applicant to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.

This Agreement is for the benefit of the Applicant and shall inure to the benefit of any successor in interest to the Applicant as well as of any person that may acquire, after the date hereon, any subsidiary or division of the Applicant with respect to Confidential Information concerning the business or affairs of such subsidiary or division.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the principles of conflict of laws thereof.

Confidentiality Agreement

This agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute the same agreement.

If the foregoing reflects our agreements, kindly sign and return the duplicate copy of this letter to the Applicant.

       Very truly yours,

                                                        

RECEIVED AND AGREED TO:

Date:     

Party/Applicant:

By: ________________

Name:  _____________

Title:  ______________

Party/Underwriter:

By:  ________________

Name:  ______________

Title:  _______________