The Element

Confidentiality & Broker Agreement

THIS CONFIDENTIALITY AND BROKERAGE AGREEMENT ("Agreement") is made and agreed to by you ("Prospective Buyer") for the benefit of THE KIRKLAND COMPANY ("Broker"), with respect to certain real property ("The Element") located in Lexington, Kentucky.

BACKGROUND:

1. The fee simple owner of the Property (the “Owner”) has engaged Broker to be the exclusive listing broker with respect to the sale of the Property;
2. Prospective Buyer has requested certain information regarding the Property from Broker for the purpose of evaluating a possible acquisition of the Property (the “Proposed Transaction”);
3. Owner has instructed Broker to deliver information concerning the Property, all or a portion of which is highly confidential (the “Existing Due Diligence Materials”), only to those potential purchasers who agree to the terms of this Agreement; and
4. Prospective Buyer has reviewed the terms of this Agreement and acknowledges that receipt of the offering memorandum with respect to the Property (“Offering Memorandum”; the Offering Memorandum and Existing Due Diligence Materials and any other materials delivered to Prospective Buyer regarding the Proposed Transaction are referred to herein collectively as the “Confidential Materials”)¹ and Confidential Materials is conditioned upon Prospective Buyer’s agreement to the terms of this Agreement.

¹ The Offering Memorandum has been prepared by Broker for use by a limited number of parties and does not purport to provide a necessarily accurate summary of the Property or any of the documents related thereto, nor does it purport to be all-inclusive or to contain all of the information which prospective buyer may need or desire. All projections have been developed by Broker and designated sources and are based upon assumptions relating to the general economy, competition, and other factors beyond the control of the Owner and therefore are subject to variation.

NOW THEREFORE, the parties agree, in consideration of the covenants and agreements contained herein, as follows:

1. The Prospective Buyer recognizes and acknowledges the competitive value and confidential nature of the Confidential Materials and the damage that could result to the Broker and Owner if information contained therein is disclosed to any third party not otherwise authorized herein. This Agreement applies to all information received from Broker, now or in the future, which is not readily available to the general public. Prospective Buyer understands that all information shall be deemed confidential, valuable and proprietary such that its unauthorized disclosure, even without intent to harm, could cause substantial and irreparable harm to Owner and Broker.
2. The Prospective Buyer agrees that the Confidential Materials will be used solely for the purpose of evaluating the Proposed Transaction. The Prospective Buyer also agrees that it will not disclose any of the Confidential Materials to any third party without the prior written consent of the Broker; provided, however, that any such information may be disclosed to Prospective Buyer’s directors, officers, employees, agents, advisors, clients and potential financing sources who need to know such information for the purpose of evaluating the Proposed Transaction (collectively, "Representatives"); provided such Representatives remain subject to the terms and conditions of this Agreement. The non-disclosure and confidentiality obligations of this Section 2 shall remain in full force and effect for a period of two (2) years from the date of the last disclosure of Confidential Materials to Prospective Buyer. Termination of the brokerage agreement between Owner and Broker shall in no way impact the obligations hereunder.
3. Without the Broker’s prior written consent, the Prospective Buyer and its Representatives will not disclose to any person the fact that discussions or negotiations are taking place concerning the Proposed Transaction.
4. In the event that the Proposed Transaction does not proceed with Prospective Buyer within ninety (90) days from the date of this agreement, Prospective Buyer agrees that it will, within two (2) business days thereafter, return all of such Confidential Materials to Broker, or certify that same have been destroyed, including, but not limited to, all internal documents containing information from the Confidential Materials, without retaining any copy, extract or summary of any thereof, and that Prospective Buyer and its Representatives shall not use for themselves or disclose to others any such Confidential Materials or internal documents.
5. Prospective Buyer is not presently making an offer to enter into the Proposed Transaction at this time, but is rather only evaluating the Confidential Materials to determine whether discussions should continue with respect to the Proposed Transaction. No offer shall be deemed to have been made until such time as a written letter of intent, specifying the details of such offer, shall be executed by the parties in writing clearly denominating such document as an offer, subject to the terms of the letter of intent, to enter into the Proposed Transaction. The Owner and Broker each expressly reserve the right, in their sole discretion, to reject any or all expressions of interest or offers regarding the Property and/or to terminate discussions with any entity at any time with or without notice.
6. The Owner shall have no legal commitment or obligations to any entity reviewing the Confidential Materials or making an offer to purchase the Property unless a written agreement for the purchase of the Property has been fully executed, delivered, and approved by the Owner and its legal counsel, and any conditions to the Owner’s obligation thereunder have been satisfied or waived.
7. Prospective Buyer acknowledges and agrees that any Confidential Materials supplied by the Broker belongs to the Owner and that the Prospective Buyer has no ownership or other interest therein.
8. Prospective Buyer acknowledges and agrees that it is only to use the Confidential Materials for the purpose of analyzing the Proposed Transaction and that Prospective Buyer shall not (i) use the Confidential Materials for its own benefit (other than the intended purpose) or the benefit of any third party, or (ii) take any other action that would serve to circumvent this Agreement.
9. In the event that the Prospective Buyer or its Representatives are requested in any proceeding to disclose any Confidential Materials, the Prospective Buyer will give Broker prompt notice of such request so that Owner may seek an appropriate protective order. Prospective Buyer will cooperate in such process.
10. By accepting the Confidential Materials, Prospective Buyer agrees to indemnify, defend, protect and hold Owner and Broker, including any affiliate of Owner or Broker, harmless from and against any and all claims, damages, demands, liabilities, losses, costs or expenses (including reasonable attorney’s fees, collectively “Claims”) arising, directly or indirectly from any actions or omissions of Prospective Buyer, its employees, officers, directors or agents, with respect to the Proposed Transaction.
11. Prospective Buyer expressly understands and agrees that the covenants and agreements to be rendered and performed by it pursuant to this Agreement are special, unique, and of an extraordinary character, and in the event of any default, breach or threatened breach by Prospective Buyer or its Representatives hereof, Broker and Owner shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either at law or in equity, and shall be entitled to specific performance or such injunctive relief and reasonable attorneys’ fees incurred in connection with obtaining any relief. All such rights and remedies shall be cumulative, and none of them shall limit any other rights or remedies of Broker or Owner.
12. By accepting the Confidential Materials, Prospective Buyer acknowledges that it is a principal and not an agent of or acting on behalf of any other party in connection with the acquisition. Prospective Buyer further acknowledges that if it chooses to be represented by an outside broker (“Co-Broker”), any and all compensation for Co-Broker shall be paid solely by Prospective Buyer, under a separate written agreement between Prospective Buyer and Co-Broker. Prospective Buyer shall indemnify and hold Owner and Broker harmless from and against any claims, causes of action or liabilities, including, without limitation, reasonable attorney’s fees and court costs which may be incurred with respect to any claims for other real estate commissions, broker’s fees or finder’s fees in relation to or in connection with the Property to the extent claimed, through or under Prospective Buyer.
13. If Prospective Buyer is a corporation, partnership, limited liability company or other non-natural legal entity, the person(s) signing this Agreement on its behalf will take all appropriate precautions to limit the dissemination of the Information only to those Representatives who have a need to know of the information, and who are specifically aware of the Agreement and agree to honor it.
14. Prospective Buyer shall not contact directly any persons concerning the Property, other than Broker, without Broker’s or Owner’s written permission. Such persons include, without limitation, Owner’s employees, property managers, agents, suppliers and tenants.
15. No representation is made by Broker or the Owner as to the accuracy or completeness of the information contained herein, and nothing contained herein shall be relied on as a promise or representation as to the future performance of the property. The Owner and its employees disclaim any responsibility for inaccuracies and expect prospective purchasers to exercise independent due diligence in verifying all such information.
16. Further, Broker, the Owner and its employees disclaim any and all liability and Prospective Buyer hereby releases Broker, Owner and its employees with respect to any representations and warranties, expressed and implied, contained in or omitted from the Confidential Materials or any other written or oral communication transmitted or made available to the Prospective Buyer. The Confidential Materials does not constitute a representation that there has been no change in the business or affairs of the property or the Owner since the date of preparation of the Confidential Materials. Analysis and verification of the information contained in the Confidential Materials are solely the responsibility of the Prospective Buyer.
17. No Commission will be paid to a Registered Broker/Agent (a) acting as a principal in the purchase of the Property, (b) acting as the broker/agent on behalf of an entity (including any corporation, partnership, limited liability company, or trust) in which the broker/agent has an interest, (c) acting as the broker/agent on behalf of an immediate family member (defined as a spouse, parent, sibling, or child including in-law relationships). THERE ARE NO EXCEPTIONS TO THE BROKER/AGENT PARTICIPATION RULES.
18. The persons signing on behalf of Prospective Buyer represent that they have the authority to bind the party for whom they sign.
19. This Agreement shall inure to the benefit of the parties hereto and their respective successors and assigns provided, however, that neither party hereto may transfer or assign any or all of its rights or obligations hereunder without the prior written consent of the other party. No failure or delay by any party or any of its Representatives in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee without giving effect to choice of law doctrines in any action. Each party hereto consents to personal jurisdiction in Williamson County, Tennessee and voluntarily submits to the jurisdiction of the courts of such state in any action or proceeding with respect to this Agreement, including the federal district courts located in such State.

By submitting this form, you have acknowledged, read, and agreed to this above Confidentiality and Brokerage Agreement.

Confidentiality Agreement

THIS CONFIDENTIALITY AND BROKERAGE AGREEMENT ("Agreement") is made and agreed to by and between THE KIRKLAND COMPANY ("Broker"), and "Prospective Buyer" with respect to the sale of certain real property located in Lexington, Kentucky and known as The Element (“Property”).

1. The fee simple owner of the Property (the “Owner”) has engaged Broker to be the exclusive listing broker with respect to the sale of the Property;
2. Prospective Buyer has requested certain information regarding the Property from Broker for the purpose of evaluating a possible acquisition of the Property (the “Proposed Transaction”);
3. Owner has instructed Broker to deliver information concerning the Property, all or a portion of which is highly confidential (the “Existing Due Diligence Materials”), only to those potential purchasers who agree to the terms of this Agreement; and
4. Prospective Buyer has reviewed the terms of this Agreement and acknowledges that receipt of the offering memorandum with respect to the Property (“Offering Memorandum”; the Offering Memorandum and Existing Due Diligence Materials and any other materials delivered to Prospective Buyer regarding the Proposed Transaction are referred to herein collectively as the “Confidential Materials”) and Confidential Materials is conditioned upon Prospective Buyer’s agreement to the terms of this Agreement.

NOW THEREFORE, the parties agree, in consideration of the covenants and agreements contained herein, as follows:

1. The Prospective Buyer recognizes and acknowledges the competitive value and confidential nature of the Confidential Materials and the damage that could result to the Broker and Owner if information contained therein is disclosed to any third party not otherwise authorized herein. This Agreement applies to all information received from Broker, now or in the future, which is not readily available to the general public. Prospective Buyer understands that all information shall be deemed confidential, valuable and proprietary such that its unauthorized disclosure, even without intent to harm, could cause substantial and irreparable harm to Owner and Broker.
2. The Prospective Buyer agrees that the Confidential Materials will be used solely for the purpose of evaluating the Proposed Transaction. The Prospective Buyer also agrees that it will not disclose any of the Confidential Materials to any third party without the prior written consent of the Broker; provided, however, that any such information may be disclosed to Prospective Buyer’s directors, officers, employees, agents, advisors, clients and potential financing sources who need to know such information for the purpose of evaluating the Proposed Transaction (collectively, "Representatives"). The non-disclosure and confidentiality obligations of this Section 2 shall remain in full force and effect for a period of one (1) year from the date of the last disclosure of Confidential Materials to Prospective Buyer. Termination of the brokerage agreement between Owner and Broker shall in no way impact the obligations hereunder.
3. Without the Broker’s prior written consent, the Prospective Buyer and its Representatives will not disclose to any person the fact that discussions or negotiations are taking place concerning the Proposed Transaction.
4. In the event that the Proposed Transaction does not proceed with Prospective Buyer within ninety (90) days from the date of this agreement, Prospective Buyer agrees that it will, within two (2) business days after the Broker requests, return all of such Confidential Materials to Broker, or certify that same have been destroyed, including, but not limited to, all internal documents containing information from the Confidential Materials, without retaining any copy, extract or summary of any thereof, and that Prospective Buyer and its Representatives shall not use for themselves or disclose to others any such Confidential Materials or internal documents.
5. Prospective Buyer is not presently making an offer to enter into the Proposed Transaction at this time, but is rather only evaluating the Confidential Materials to determine whether discussions should continue with respect to the Proposed Transaction. No offer shall be deemed to have been made until such time as a written letter of intent, specifying the details of such offer, shall be executed by the parties in writing clearly denominating such document as an offer, subject to the terms of the letter of intent, to enter into the Proposed Transaction. The Owner and Broker each expressly reserve the right, at their sole discretion, to reject any or all expressions of interest or offers regarding the Property and/or to terminate discussions with any entity at any time with or without notice.
6. The Owner shall have no legal commitment or obligations to any entity reviewing the Confidential Materials or making an offer to purchase the Property unless a written agreement for the purchase of the Property has been fully executed, delivered, and approved by the Owner and its legal counsel, and any conditions to the Owner’s obligation thereunder have been satisfied or waived.
7. Prospective Buyer acknowledges and agrees that any Confidential Materials supplied by the Broker belongs to the Owner and that the Prospective Buyer has no ownership or other interest therein.
8. Prospective Buyer acknowledges and agrees that it is only to use the Confidential Materials for the purpose of analyzing the Proposed Transaction and that Prospective Buyer shall not (i) use the Confidential Materials for its own benefit (other than the intended purpose) or the benefit of any third party, or (ii) take any other action that would serve to circumvent this Agreement.
9. In the event that the Prospective Buyer or its Representatives are requested in any proceeding to disclose any Confidential Materials, the Prospective Buyer will give Broker prompt notice of such request so that Owner may seek an appropriate protective order.
10. By accepting the Confidential Materials, Prospective Buyer agrees to indemnify, defend, protect and hold Owner and Broker, including affiliate of Owner or Broker, harmless from and against any and all claims, damages, demands, liabilities, losses, costs or expenses (including reasonable attorney’s fees, collectively “Claims”) arising, directly or indirectly from any actions or omissions of Prospective Buyer, its employees, officers, directors or agents, with respect to the Proposed Transaction.
11. Prospective Buyer expressly understands and agrees that the covenants and agreements to be rendered and performed by it pursuant to this Agreement are special, unique, and of an extraordinary character, and in the event of any default, breach or threatened breach by Prospective Buyer or its Representatives hereof, Broker and Owner shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either at law or in equity, and shall be entitled to specific performance or such injunctive relief and reasonable attorneys’ fees incurred in connection with obtaining any relief. All such rights and remedies shall be cumulative, and none of them shall limit any other rights or remedies of Broker or Owner.
12. By accepting the Confidential Materials, Prospective Buyer acknowledges that it is a principal and not an agent of or acting on behalf of any other party in connection with the acquisition. Prospective Buyer further acknowledges that if it chooses to be represented by an outside broker (“Co-Broker”), any and all compensation for Co-Broker shall be paid solely by Prospective Buyer, under separate written agreement between Prospective Buyer and Co-Broker. Prospective Buyer shall indemnify and hold Owner and Broker harmless from and against any claims, causes of action or liabilities, including, without limitation, reasonable attorney’s fees and court costs which may be incurred with respect to any claims for other real estate commissions, broker’s fees or finder’s fees in relation to or in connection with the Property to the extent claimed, through or under Prospective Buyer.
13. If Prospective Buyer is a corporation, partnership, limited liability company or other non-natural legal entity, the person(s) signing this Agreement on its behalf will take all appropriate precautions to limit the dissemination of the Information only to those persons within the entity who have need to know of the information, and who are specifically aware of the Agreement and agree to honor it.
14. Prospective Buyer shall not contact directly any persons concerning the Property, other than Broker, without Broker’s or Owner’s written permission. Such persons include, without limitation, Owner’s employees, property managers, agents, suppliers and tenants.
15. No representation is made by Broker or the Owner as to the accuracy or completeness of the information contained herein, and nothing contained herein shall be relied on as a promise or representation as to the future performance of the property. Although the information contained herein is believed to be correct, the Owner and its employees disclaim any responsibility for inaccuracies and expect prospective purchasers to exercise independent due diligence in verifying all such information.
16. Further, Broker, the Owner and its employees disclaim any and all liability and Prospective Buyer hereby releases Broker, Owner and its employees with respect to any representations and warranties, expressed and implied, contained in or omitted from the Confidential Materials or any other written or oral communication transmitted or made available to the Prospective Buyer. The Confidential Materials does not constitute a representation that there has been no change in the business or affairs of the property or the Owner since the date of preparation of the Confidential Materials. Analysis and verification of the information contained in the Confidential Materials are solely the responsibility of the Prospective Buyer.
17. No Commission will be paid to a Registered Broker/Agent (a) acting as a principal in the purchase of the Property, (b) acting as the broker/agent on behalf of an entity (including any corporation, partnership, limited liability company, or trust) in which the broker/agent has an interest, (c) acting as the broker/agent on behalf of an immediate family member (defined as a spouse, parent, sibling, or child including in-law relationships). THERE ARE NO EXCEPTIONS TO THE BROKER/AGENT PARTICIPATION RULES.
18. The persons signing on behalf of Prospective Buyer represent that they have the authority to bind the party for whom they sign.
19. This Agreement shall inure to the benefit of the parties hereto and their respective successors and assigns provided, however, that neither party hereto may transfer or assign any or all of its rights or obligations hereunder without the prior written consent of the other party. No failure or delay by any party or any of its Representatives in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee without giving effect to choice of law doctrines in any action. Each party hereto consents to personal jurisdiction in the State of Tennessee and voluntarily submits to the jurisdiction of the courts of such state in any action or proceeding with respect to this Agreement, including the federal district courts located in such State.