Large infill corner parcel of approximately 4.29 acres
Located at dominant intersection in Carmichael
Hard corner signalized intersection with high visibility
Excellent traffic counts
Dense population in the surrounding area
Low price PSF
This Non‑Disclosure Agreement is entered into on this ____ day of August, 2019, by and between _______________________________________________and/or any of his/her/its affiliated entities (collectively, the “Potential Purchaser”) and STORE Capital
Corporation (“STORE”) (each, a “Party” and collectively, the “Parties”).
WHEREAS, STORE is in possession of certain proprietary and confidential data and information relating to its respective business, customers, assets and business opportunities; and
WHEREAS, STORE desires to provide such data and information for the purpose of evaluating potential transactions between STORE and Potential Purchaser (each, a “Potential Transaction”); and
WHEREAS, Potential Purchaser recognizes and acknowledges the competitive value and confidential nature of the Confidential Information (hereinafter defined) and the damage that could result to STORE if any part of the Confidential Information received by it were
used improperly or disclosed to any third party.
NOW THEREFORE, in consideration of the mutual disclosure of this Confidential Information and the covenants made herein, STORE agree to disclose the Confidential Information to Potential Purchaser subject to the following terms and conditions:
Potential Transaction Defined.
In connection with each Potential Transaction, the Potential Purchaser has requested, or may be receiving, from STORE information of a non‑public nature for use by Potential Purchaser and by certain of their respective officers, directors, agents, employees, affiliates and representatives,
including financial and legal advisors, as, in Potential Purchaser’s judgment, need to know such Confidential Information to evaluate the Potential Transaction (such persons to whom the Potential Purchaser provides Confidential Information, collectively, the
Confidential Information Defined.
The Potential Purchaser acknowledges that, in the course of their consideration of a Potential Transaction, and in the course of any concurrent or subsequent discussion between the Potential Purchaser and STORE or their Representatives relating to a Potential Transaction, the Potential Purchaser
shall receive certain Confidential Information. As used herein, the term “Confidential Information” shall include, but not be limited to non-public information from, or about, STORE or its respective affiliates; its respective tenants or customers; its or its respective
tenants’ or customers’ businesses, financial condition, operations or prospects, as well as technical, financial and business plans and models, names of customers or partners, proposed business deals, reports, market projections, software programs, data or any other confidential or
proprietary information relating to STORE or its affiliates or its tenants or customers or the Potential Transaction.
Confidential Information as used herein also includes information supplied by STORE to the Potential Purchaser prior to the execution of this Agreement, and such Confidential Information shall be considered in the same manner, and be subject to the same treatment, as the Confidential Information
made available after the execution of this Agreement. Confidential Information as used herein shall also include the existence of discussions and the fact that any discussions have taken, or are taking, place.
Exclusions from Definition.
Confidential Information as used herein does not include any information which (i) is already known to the Potential Purchaser or its Representatives at the time that it is disclosed to the Potential Purchaser; provided that such prior knowledge can be substantiated by written records and
documents; or (ii) is or has become generally known to the public through no wrongful act of the Potential Purchaser in violation of the terms of this Agreement; or (iii) is obtained by the Potential Purchaser or its Representatives from a third party who has the right, to the Potential
Purchaser’s knowledge, to disclose the information, or (iv) is or has been approved for release by a written authorization by STORE, or (v) is independently developed by the Potential Purchaser or its Representatives without use directly or indirectly of the Confidential Information
received from STORE, provided that such independent development can be substantiated by written records and documents.
Usage and Non-Disclosure.
The Potential Purchaser agrees that it shall and shall cause its Representatives to refrain from using the Confidential Information except for the purpose of evaluating or implementing a Potential Transaction. The Potential Purchaser shall maintain the confidentiality of the Confidential
Information and shall not disclose, without the prior written consent of STORE or except as otherwise permitted herein, such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with the Potential
Purchaser’s evaluation of a Potential Transaction. Representatives shall be informed by the Potential Purchaser of the confidential nature of the Confidential Information. The Potential Purchaser agrees to be responsible for any breach of this Agreement by its Representatives to
whom Confidential Information is given, provided that the Potential Purchaser shall not be liable for any breach of its Representatives who have executed a separate confidentiality agreement with STORE.
Compliance with Legal Process.
In the event that the Potential Purchaser or any of its Representatives is legally requested or required in the opinion of its counsel, to disclose Confidential Information to comply with any law, order, decree or governmental request or regulatory or self-regulatory process (collectively,
“Law”), then the Potential Purchaser shall (and the Potential Purchaser shall use commercially reasonable efforts to cause such Representative to), to the extent permissible under Law and reasonably practicable, promptly notify STORE of such request or requirement prior to disclosure
so that STORE may seek (at its sole costs) an appropriate protective order and/or waive compliance with the terms of this Agreement.
If no such protective order or other remedy is obtained, or STORE waives compliance with the terms of this Agreement, the Potential Purchaser or such Representatives may disclose (without any liability hereunder) only that portion of the Confidential Information that in the opinion of counsel is
then required by Law to be disclosed and will exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to the Confidential Information so disclosed.
Ownership: Return of Information.
No grant of license, under any trademark, patent, copyright or any other intellectual property right is either granted or implied by the conveying of Confidential Information to the Potential Purchaser. All Confidential Information (including tangible copies and computerized or electronic
versions thereof) shall remain the property of STORE. In the event that the Potential Purchaser elects not to proceed with the Potential Transaction or at any time promptly following STORE’s request, the Potential Purchaser shall destroy or deliver to STORE all tangible materials
containing or embodying the Confidential Information.
Remedies for Breach.
The Potential Purchaser understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement and that STORE shall be entitled to seek such injunctive or other equitable relief remedy or forestall such breach or threatened breach and the Potential Purchaser
further agrees to waive and to use its commercially reasonable efforts to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedy shall not be deemed to be the exclusive remedy for any breach of this
Agreement but shall be in addition to all other rights and remedies available at law or in equity. The Parties further acknowledge and agree that the covenants contained herein are necessary for the protection of legitimate business interests and are reasonable in scope.
The Potential Purchaser agrees to not seek to gain access to any property that is part of the Potential Transaction or communicate with any employees, managers, lenders, tenants, or any other third parties without the prior consent of STORE, which consent may be withheld in STORE’s sole
No Further Obligations.
Except to the extent arising out of or relating to a definitive agreement, when, as and if executed, and subject to such limitations and qualifications as may be set forth therein, STORE make no representations or warranties, express or implied, with respect to the Confidential Information
disclosed hereunder. No Party shall be liable for indirect, incidental or consequential, or punitive damages of any nature or kind resulting from or arising in connection with this Agreement. Further, the Parties agree that this Agreement does not obligate either of the Parties to
enter into any further agreements or to proceed with any possible relationships, joint venture or other transaction.
Either of the Parties may terminate the exchange of Confidential Information under this Agreement at any time by written notice to the other Party specifically referencing this Agreement.
In any event, however, the obligations of each of the Parties to maintain the confidentiality of the Confidential Information it has received under this Agreement shall survive.
No Waiver; Amendment; Exclusive Agreement.
No failure or delay by either of the Parties in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege
hereunder. This Agreement shall not be modified, supplemented or amended except by a writing signed by both Parties hereto. This Agreement represents the exclusive agreement between the Parties in connection with the subject matter hereof.
Applicability to Affiliates; Tenants.
Any Confidential Information disclosed by an affiliated company of STORE or of any tenant or customer of STORE, which would otherwise constitute Confidential Information hereunder if disclosed by STORE, shall be deemed to constitute Confidential Information under this Agreement, and the rights of
STORE under this Agreement may be enforced by any such affiliate, tenant or customer as if such affiliate, tenant or customer were also a party to this Agreement.
Governing Law; Counterparts.
This Agreement shall be governed by, and construed, interpreted and enforced in accordance with, the laws of the State of Arizona without regard to the conflict of law provisions thereof. This Agreement may be signed by the Parties in counterpart and via facsimile.
IN WITNESS WHEREOF, the Parties have executed and delivered this Non-Disclosure Agreement effective as of the date first written above.