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 ("Windsor Downs") located in Smyrna, Tennessee.
BACKGROUND:
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;
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”);
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
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.
1The 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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The persons signing on behalf of Prospective Buyer represent that they have the authority to bind the party for whom they sign.
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
In connection with your interest in a potential, negotiated acquisition of those certain properties listed in Exhibit A hereto (individually or collectively as the context may require, the “Property”) from April Housing (individually or collectively as the context may require, the “Company”), you have requested certain information concerning the Property from the Company and its affiliates and its and their respective directors, officers, members, partners, employees, representatives, agents and/or advisors (including without limitation, attorneys, accountants, consultants and financial advisors) (individually or collectively as the context may require, the “Company’s Representatives”). In consideration of furnishing you with the Evaluation Material (as defined herein), the Company requests your agreement to the following:
Representatives. For purposes of this letter agreement, your Representatives (as defined herein) include your affiliates and your and their respective directors, officers, employees, accountants, legal advisors and, subject to the following paragraph, Financing Sources (as defined herein). Notwithstanding anything to the contrary herein, the term “Representatives” does not include, and you shall not, directly or indirectly, disclose any Evaluation Material and/or Transaction Information (as defined herein) to, any person acting as a potential or actual joint bidder, equity investor or other debt or equity financing source with respect to a possible Transaction (as defined herein) (any such person, a “Financing Source”), unless you have received the Company’s prior written consent (it being understood that once such consent is delivered, such Financing Source shall be deemed your Representative).
Definition of Evaluation Material. The term “Evaluation Material” means all information concerning the Company and/or the Property, including but not limited to any of the Property’s ownership structures (whether prepared by the Company, the Company’s Representatives, their respective advisors or otherwise and irrespective of the form of communication), that is furnished to you or to your Representatives now or in the future by or on behalf of the Company. “Evaluation Material” also shall be deemed to include all analyses, compilations, forecasts, studies, summaries, notes, data and/or other documents prepared by you or your Representatives containing, reflecting or generated from, in whole or in part, the information furnished to you or your Representatives pursuant hereto. The term Evaluation Material does not include any information which (i) is or becomes publicly available other than as a result of a disclosure by you or your Representatives, (ii) is already in your possession, on a non-confidential basis, provided that such information is not actually known by you, after due inquiry, to be subject to any legal or contractual obligation of confidentiality owed to the Company or the Company’s Representatives, (iii) becomes available to you on a non-confidential basis from a source other than the Company or the Company’s Representatives, provided that such source is not known by you, after due inquiry, to be subject to any legal, contractual or fiduciary obligation to the Company or the Company’s Representatives or another party reasonably known to have an obligation to the Company or its affiliates to keep such information confidential, or (iv) is independently developed by you without use of or reference to the Evaluation Material or otherwise violating any of your obligations hereunder.
Your Obligations. The Evaluation Material will be used solely for the purpose of evaluating your potential purchase of the Property from the Company or its affiliates (the “Transaction”) and not for any other purpose. You will protect the Evaluation Material with the same degree of care that you use to prevent the unauthorized use, access or disclosure of your own confidential and proprietary information, which will be not less than a reasonable degree of care. The Evaluation Material will be kept strictly confidential in accordance with the terms hereof by you and your Representatives and will not be disclosed by you or your Representatives to any other person except (i) as may be consented to by the Company in writing, (ii) if required by law, regulation or legal or judicial process, subject to paragraph 4 below, and (iii) that you may disclose the Evaluation Material or portions thereof to those of your Representatives who need to know such Evaluation Material for the purpose of evaluating the Transaction, but only to the extent necessary to evaluate the Transaction and only if such Representatives are advised of the confidential nature of such Evaluation Material and the terms of this letter agreement. You will be responsible for any failure to comply with the terms of this letter agreement by you or your Representatives, and you agree at your sole commercially reasonable expense, to take all commercially reasonable measures to restrain your Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material.
Compelled Disclosure. In the event that you or your Representatives are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process) to disclose any Evaluation Material, you will provide the Company, to the extent permissible under applicable law or regulation, with prompt written notice of such request or requirement so that the Company or its affiliates may seek an appropriate protective order or waive compliance with the provisions of this letter agreement. If a protective order or the receipt of a waiver is not obtained, and you or your Representatives are, in the opinion of your or their legal counsel, compelled to disclose Evaluation Material, you and/or your Representatives, as applicable, may disclose that portion of the Evaluation Material that your or their legal counsel advises that you or your Representatives are compelled to disclose, provided that you shall give the Company written notice of the information to be disclosed as far in advance of its disclosure as practicable. You also agree to use your commercially reasonable efforts to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material. Notwithstanding any such compelled disclosure by you or your Representatives, such compelled disclosure will not otherwise affect your and your Representatives’ obligations hereunder with respect to Evaluation Material so disclosed.
Transaction Information. Except with regard to your Representatives, you agree that, without the prior written consent of the Company, neither you nor any of your Representatives will disclose to any other person (i) the fact that any investigations, discussions or negotiations are taking place concerning the Transaction, (ii) that you and/or any of your Representatives have received Evaluation Material from the Company or that Evaluation Material has been made available by or on behalf of the Company, or (iii) any of the terms, conditions or other facts with respect to the Transaction, including the status thereof (the information in clauses (i) through (iii) being “Transaction Information”), except that you may make such disclosure if your legal counsel advises such disclosure is required by applicable law, regulation or legal process but only after compliance with the procedures set forth in paragraph 4 above. The term “person” as used in this letter agreement will be interpreted broadly to include the media and any corporation, company, group, partnership or other entity or individual, as well as, for the avoidance of doubt, any third party with whom the Company, its affiliates or any person acting on the Company’s or its affiliates behalf has initiated or will be initiating discussions regarding participation in a Transaction in the same or similar capacity as you or your affiliates will potentially participate.
Ownership; Return or Destruction of Evaluation Material. All Evaluation Material shall be and remain the property of the Company and the Company’s Representatives, as applicable, and no right or license is granted to you with respect to any Evaluation Material or any other intellectual property of the Company or its affiliates. At any time upon the request of the Company for any reason, you will promptly deliver to the Company all Evaluation Material (and all copies thereof) furnished to you or your Representatives by or on behalf of the Company pursuant hereto, as well as promptly destroy all other Evaluation Material prepared by you or your Representatives; provided, that, you and your Representatives may retain copies of Evaluation Material if required to comply with applicable law or regulation; provided, further, that, any retained Evaluation Material remains subject to the terms and conditions of this letter agreement. Notwithstanding the return or destruction or permitted retention of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder.
No Other Obligation. Each party hereto understands and agrees that no contract or agreement providing for the Transaction shall be deemed to exist between you and the Company unless and until a final, legally binding definitive agreement has been executed and delivered. Each party hereto also agrees that unless and until a final, legally binding definitive agreement between you and the Company with respect to the Transaction has been executed and delivered, neither you nor the Company has any legal obligation of any kind whatsoever with respect to the Transaction by virtue of this letter agreement, except for the matters specifically agreed to herein. You acknowledge that the Company expressly reserves the right to terminate negotiations regarding the Transaction at any time, without providing you with the reasons. The Company is free to refuse any offer you may make, and the Company may provide the same or similar information to other parties and enter into agreements with other parties.
No Representations or Warranties. Although the Company has endeavored to include in the Evaluation Material all of the information which is relevant for the purposes of your investigation, you understand and acknowledge that neither the Company nor any of the Company’s Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company nor any of the Company’s Representatives shall have any liability to you or any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations and warranties which are made in a final, legally binding definitive agreement regarding the Transaction, when, as and if executed and delivered, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
Restricted Communication and Access. Without the prior written consent of the Company, and except for communications in the ordinary course of business unrelated to the Transaction, neither you nor your Representatives will initiate or cause to be initiated any (i) communication concerning the Evaluation Material or Transaction Information, (ii) requests for additional information on any of the Property, or (iii) requests for (a) visits or tours of the Property, or (b) management meetings in connection with the Transaction, except, in each case, with the Company or its designee. You also agree that neither you nor any of your Representatives will, without the prior written consent of the Company, initiate or maintain contact (except in the ordinary course of business unrelated to the Transaction) with any tenant, tenant association, tenant’s right group, or similar person or organization, lender, servicer, special servicer, investor, partner, manager, contract counterparty, employee, ground lessor, or agent for, the Property or any federal, state, county, municipal or other governmental department, entity, authority, board, bureau, court, agency, affordable housing non-profit organization, or any instrumentality of the foregoing.
Non-Solicitation. You agree that neither you nor any of your affiliates nor any of your Representatives acting on your behalf will, without the prior written consent of the Company, directly or indirectly, solicit for employment or hire any employee of the Company or any of its affiliates or subsidiaries, as well as any employee who works at the Property, with whom you have had contact or who became known to you in connection with your consideration of the Transaction; provided, however, that the foregoing shall not restrict you or your affiliates from (i) placing general advertisements for employment not specifically directed at any particular individual or at employees of the Company or any of its affiliates or subsidiaries or those who work at the Property or (ii) hiring any person who responds to such general advertisements.
Principal. You hereby acknowledge that you are a principal or investment advisor in connection with the Transaction and you agree that you will not look to the Company or the Company’s Representatives for any fees or commissions in connection with the Transaction.
Remedies. You agree that money damages would not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company or its affiliates shall be entitled to equitable relief, including injunction and specific performance, in the event of any such breach, in addition to all other remedies available to the Company or its affiliates at law or in equity. You further agree to waive any requirement for the securing or posting of any bond in connection with such remedy.
Governing Law; Jurisdiction. This letter agreement shall be governed by and construed in accordance with the internal laws of the State of New York. You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States of America located in the Southern District of the State of New York for any actions, suits or proceedings arising out of or relating to this letter agreement (and you agree not to commence any action, suit or proceeding relating thereto except in such courts, and further agree that service of any process, summons, notice or document by U.S. registered mail to your address set forth above shall be effective service of process for any action, suit or proceeding brought against you in any such court). You hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this letter agreement in the courts of the State of New York or the United States of America located in the State of New York, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
U.S. Securities Laws. You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed as to the matters which are the subject of this letter agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this letter agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
Waivers. Each party hereto agrees that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
Severability. If any provision of this letter agreement is found to violate any statute, regulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this letter agreement, and such invalid provision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.
Assignment. This letter agreement and each party’s obligations hereunder shall be binding on the representatives, assigns and successors of such party and shall inure to the benefit of the assigns and successors of such party, provided, however, that your rights and obligations hereunder are not assignable, except to your Representatives, as provided herein.
Entire Agreement; Amendment; Delivery as Acceptance. This letter agreement (i) constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes any prior communications, understandings and agreements between the parties; and (ii) may not be waived, amended or modified except by a written instrument executed by the parties hereto. Following your execution of this letter agreement, the delivery to you of Evaluation Material by or on behalf of the Company shall confirm the agreement of the Company to the terms and conditions of this letter agreement.
Term. The provisions of this letter agreement shall continue in full force and effect at all times until three (3) years from the date hereof.
