It is understood that your organization (the "Company") is interested in acquiring the real property and improvements contained in the Walmart Portfolio of 5 properties located in Alabama & Virginia (the "Property") involving 2200 Mobile, LLC; 2200 Huntsville, LLC; Brookfield Forest, LLC; PVP Theodore, LLC; (collectively "Ownership"). To assist in your evaluation of a potential acquisition of the Property currently owned by the Owner (the "Transaction"), we will provide you with certain oral and written information concerning the Property. As a strict condition to providing you with such information, Company agrees to treat confidentially such information and any other information (collectively "Confidential Information") which Owner, its affiliates, partners, lenders, employees, accountants, agents, attorneys, or advisors (collectively the "Representatives") furnish to your Company. The term Confidential Information shall also include any analysis, studies, reviews, compilations, or other documents prepared by Company or Company's Representatives containing or based in whole or in part on, any of the Confidential Information provided by Owner whether before or after the date of this agreement.
By executing below you agree and acknowledge that the Confidential Information is a valuable asset of the Owner, has significant value, and shall be held in the strictest of confidence. Company agrees that the Confidential Information will be kept confidential by it and its Representatives and shall not, except as hereinafter provided, without the prior written consent of Owner, be disclosed by it or its Representatives or than for purposes of evaluating Property for acquisition. Additionally, Company agrees to share Confidential Information only to those of its Representatives who need the information for the purpose of evaluating Property for acquisition and who shall be advised of this letter confidentiality agreement (the "Agreement") and agree with Company to be bound to the same provisions. Company shall be fully responsible for any breach of this Agreement by its Representatives. Furthermore, this is neither an agreement to sell the Property nor an offer of sale of the Property. No agreement binding upon the Owner, or any of its associated or affiliated companies, shall be deemed to exist, at law or equity, until the Owner of the Property enters into a formal binding agreement of sale.
The term Confidential Information does not include information which (i) is public information other than as a result of disclosure by Company or its Representatives, (ii) was available to Company on a non-confidential basis prior to its disclosure to Company by Owner or Representatives, or (iii) becomes available to Company on a non-confidential basis from a source other than Owner or its Representatives; provided, however, that such source is not bound by a confidentiality agreement with Owner or its Representative
Furthermore, by executing this Agreement you agree and acknowledge that:
the Confidential Information will be used by it solely for the purpose of the Transaction;
the Company shall not directly or indirectly disclose, display, provide, transfer or otherwise make available all or any part of the Confidential Information to any person or entity other than Company's Representatives;
the Company covenants and agrees to destroy all Confidential Information upon the written request of the Ownership. In addition, the Company covenants and agrees to erase, delete or destroy any notes, documents, magnetic media or other computer storage which contain any information copied or derived from the Confidential Information;
the Company may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of Ownership. Any such attempt at assignment or transfer without the Ownership's prior written consent shall be void and of no force or effect;
If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative, or unenforceable because of the conflict of such provision with any constitution, statue, rule, or public policy or for any other reason, such circumstance shall not have the effect of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable, but this Agreement shall be reformed and construed as if such invalid, inoperative or unenforceable provision had never been contained herein and such provision reformed so that it would be valid, operative and enforceable to the maximum extent permitted to reflect the original intent of the parties hereto;
the parties hereto agree that this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements with respect thereto;
the parties hereto agree that this Agreement is binding upon and will inure solely to the benefit of the parties and their respective permitted assigns and successors in interest, and no other person will be entitled to any of the benefits conferred by this Agreement;
the Company acknowledges and agrees that any and all offers submitted on the Company's behalf may be rejected at any time for any reason, that Ownership may at any time discontinue or cause the Company to discontinue, for any reason whatsoever, negotiations with the Company;
Recipient acknowledges that Ownership shall be free to negotiate with other prospective investors in the Transaction and to deal with other companies, purchasers and persons for that purpose;
the Company and their Representatives will not communicate, directly or indirectly, with tenants of the Property, existing Lender, or governmental or quasi-governmental bodies concerning the Property without the prior written consent of Owner;
unauthorized release of any or all of the Confidential Information would cause immediate and irreparable harm to Owner that could not be repaired and for which Owner could not be fully compensated by money damages;
Owner may obtain injunctive relief to prevent or limit such unauthorized disclosure, and may also pursue any other remedies available under law or equity in result of an alleged or reasonably anticipated breach of this Confidentiality Agreement;
the Company agrees to pay any damages incurred by Owner as a result of the undersigned's or any Representative's breach of this Confidentiality Agreement, including, but not limited to, court costs and reasonable attorney's fees;
the Company shall indemnify and hold Ownership harmless from and against any and all liability, loss, cost, damage or expense, including attorney's fees, arising directly or indirectly from any party making a claim for a fee of commission alleging to have acted on Company's behalf with respect to the Transaction;
upon the Owner's written request, you shall promptly deliver to the Owner all documents furnished to you by or on behalf of the Owner constituting Material, without retaining a copy;
Owner has retained Stan Johnson Company (the "Agent"), under separate agreement, as its exclusive agent with respect to the offering for sale of the Property;
Owner expressly reserves the right in its sole discretion to reject any or all proposals or expressions of interest in the property and to terminate discussions with any party at any time with or without notice;
this Agreement shall be governed and construed in accordance with the laws of the State of Alabama & Virginia, and may not be changed, waived or terminated orally and shall be binding upon the parties and their successors or assigns;
although, Confidential Information is gathered from sources believed to be reliable, neither Owner nor Agent make any representation or warranty, expressed or implied, as to the accuracy or completeness and no legal liability is assumed or implied.
THIS IS INTENDED TO BE A LEGALY BINDING AGREEMENT WITH LEGEL IMPLICATIONS WHEN SIGNED. THE PARTIES INVOLVED MAY WISH TO CONSULT WITH AN ATTORNEY OR LEGAL PROFESSIONAL BEFORE SIGNING.
(Any fees to a company's broker are to be agreed per separate agreement. Additionally, a Company's Broker is bound to the same terms of this agreement. If no Broker information is provided below it is acknowledged by Company they are not represented by a Broker and no other Broker(s) is involved except Stan Johnson Company)