THIS CONFIDENTIALITY AGREEMENT dated as of the date entered in the form below is entered into by the name in the form below (“Recipient”) at the address listed in the form below in favor of Calkain Companies, LLC (“Broker” or “Calkain”).
Broker proposes to make available to Recipient and its officers, directors, employees, agents, accountants, lawyers and other advisors ("Representatives") (or to cause to be made available to Representatives) certain confidential or proprietary information (the “Evaluation Material”) regarding the property known as Avondale Commons located at the intersection of Kennedy Expressway (I-90/94) &&Addison Street in Chicago, IL and brought to Recipient’s attention by Broker (the “Property”) in order to facilitate further discussions concerning the possible purchase of the Property by the Recipient (the "Proposed Transaction"). The term "Evaluation Material" includes the fact that the Recipient is having discussions with Broker concerning the Proposed Transaction, and any information concerning the Property, and the Property’s tenants, including but not limited to transaction documents, structure outlines, customer data, financial data and similar proprietary information, together with and all notes, compilations, analyses and other material prepared by Recipient and its Representatives which contain or reflect such Evaluation Material.
As a condition to Broker providing the Evaluation Material, Recipient agrees as follows:
1. Recipient will require its Representatives to be bound by this Agreement, and Recipient will be responsible for any breach of this Agreement by its Representatives.
2. Recipient will not disclose the Evaluation Material to anyone other than its authorized Representatives who need to know such information for purposes of evaluating the Proposed Transaction. Recipient will use the Evaluation Material for the sole purpose of evaluating the Proposed Transaction and not for any other purpose.
3. This Agreement will not apply to Evaluation Material which (i) is or becomes generally available to the public other than as a result of disclosure by Recipient or its Representatives in breach of this Agreement, or (ii) is or becomes available to Recipient on a non-confidential basis from a source other than Broker, provided that such source is not known to Recipient to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation to Broker.
4. Recipient agrees that it will not, without express written authorization from Broker, initiate or maintain contact with any joint venture partner, tenant, property manager, borrower, guarantor or other obligor under or with respect to the Property (except for contacts in the ordinary course
of business unrelated to Recipient’ evaluation of the Proposed Transaction). Recipient further agrees to direct all inquiries and requests for information concerning the Proposed Transaction to Andrew Fallon at Calkain, and agrees not to contact any other Broker personnel at the Property regarding the Proposed Transaction.
5. Upon the request of Broker, Recipient will return or certify to the destruction, as requested by Broker, of all copies of the Evaluation Material.
6. If Recipient or any of its Representatives receives a request or becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigation, demand, order or similar process) to disclose any of the Evaluation Material, prior to any such disclosure Recipient will (i) promptly notify Broker, and (ii) cooperate with Broker in any attempt it may make to obtain a protective order or other appropriate remedy or assurance that confidential treatment will be afforded the Evaluation Material. If such protective order or other appropriate remedy is not obtained, Recipient will furnish only that portion of the Evaluation Material which is legally required.
7. Recipient will indemnify and hold harmless Broker from any damage, loss, claim or other liability arising out of the breach of this Agreement by Recipient or its Representatives. Recipient acknowledges that Broker would be irreparably injured by a breach of this Agreement, and agree that Broker will be entitled to equitable relief (including injunctive relief and specific performance) in the event of any such breach. This remedy will be in addition to all other remedies available to Broker at law or in equity. No failure or delay by Broker in exercising any right, power or privilege hereunder will operate as a waiver thereof.
8. Broker is providing the Evaluation Material to Recipient without representation or warranty, express or implied, of any kind or nature, as to accuracy, completeness or suitability for any purpose. Neither Broker, nor its parent or subsidiaries (or their respective officers, directors, employees, agents or advisors) will have any liability to Recipient as a result of its use of or reliance on the Evaluation Material. 9. Unless and until a definitive written commitment or agreement is executed and delivered with respect to Proposed Transaction, neither party will be under any legal obligation of any kind whatsoever with respect to the Proposed Transaction (except as set forth in this Agreement with respect to confidentiality). 10. This letter sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings (whether written, verbal, implied or otherwise) with respect thereto. No term or condition of this letter may be waived or otherwise modified except by a written agreement executed by the party to be charged. 11. This Agreement will be governed and construed in accordance with the laws of the Commonwealth of Virginia, and will be binding on the parties’ successors and assigns. IN WITNESS WHEREOF, a duly authorized representative of Recipient and, if applicable, Broker has executed this Agreement as of the date set forth above.