BY CLICKING ON THE "SUBMIT" BUTTON, REVIEWER (DEFINED BELOW) HEREBY AGREES, EACH TIME THIS WORKSPACE IS ACCESSED, AS FOLLOWS:
Notice to and Undertaking by Reviewers
The Evaluation Material (defined below) available on this workspace has been prepared solely for informational purposes and is being furnished by the Seller (defined below) to the Reviewer in considering the Review (defined below).
ENTERING THIS WORKSPACE CONSTITUTES AN AGREEMENT TO BE BOUND BY THE TERMS OF THE AGREEMENT (DEFINED BELOW) AND THIS NOTICE TO AND UNDERTAKING BY REVIEWERS (THE "SPECIAL NOTICE"). IF THE REVIEWER IS NOT WILLING TO ACCEPT THE EVALUATION MATERIAL ON THE TERMS SET FORTH IN THE AGREEMENT AND IN THIS SPECIAL NOTICE, IT MUST EXIT THIS SITE AND NOT REVIEW ANY EVALUATION MATERIAL.
By clicking the “SUBMIT” button below, you acknowledge and agree, for the benefit of Seller, that you are able to receive Evaluation Material.
You further agree on behalf of yourself and the Reviewer (i) to use all information on this workspace in accordance with your compliance policies, contractual obligations and all applicable laws, including United States Federal or State securities laws and (ii) if at any time you are no longer a Representative (as defined below) of the Reviewer or are not considering a Transaction, you shall not be permitted access to, and shall cease to use, this workspace and you will take all necessary steps to cause yourself to be promptly removed as a user of this workspace.
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (the “Agreement”) is made as of the date set forth below by the reviewer, as noted the in below electronic submission form, (the “Reviewer”) 4 Becker Farm Road Holdings, LLC, a Maryland limited liability company (“Owner”).
Recitals:
A. Owner owns certain real property described on Exhibit “A” attached hereto (the “Real Property”).
B. The Reviewer has requested Evaluation Material (as hereinafter defined) about the Real Property. As a condition to providing such Evaluation Material, Owner has requested that the Reviewer agree to treat such Evaluation Material confidentially. Reviewer has agreed to abide by the following terms and conditions:
Agreement:
1. Disclosure of Evaluation Material. Owner may, at its option, from time to time, hereafter disclose to Reviewer such information relating to the Real Property as may be reasonably requested by Reviewer and which Owner elects to disclose in its sole discretion, to permit Reviewer to evaluate the Real Property. Delivery of such information creates no agreement to sell either express or implied. All of the information disclosed, whether disclosed orally or in writing, by delivery of copies of documents or other materials or by electronic transmission, by any other method, or by permitting access to and inspection of records, is hereinafter referred to as the “Evaluation Material.” The term “Evaluation Material” shall be deemed also to include all cash flow information, analyses, compilations, modeling, studies or other documents prepared by the Reviewer or its representatives containing or based in whole or in part on any information furnished by Owner or any of its representatives, agents or servicers.
2. Confidentiality and Ownership of Evaluation Material. Reviewer acknowledges and agrees that any and all of the Evaluation Material furnished to it pursuant to Section 1 is confidential and proprietary to Owner and Reviewer will not acquire any ownership interest in the Evaluation Material by virtue of its disclosure pursuant to this Agreement. Owner shall not be required to mark or identify any of the Evaluation Material as being confidential. Reviewer shall use all such other measures to protect the confidentiality of the Evaluation Material as it normally takes to protect the confidentiality of its own Evaluation Material or which are otherwise reasonable or appropriate or reasonably requested by Owner.
3. Permitted Uses. Reviewer agrees that the Evaluation Material is being provided pursuant to an express limited privilege, and the Evaluation Material will be used only for the purposes of permitting Reviewer to evaluate a possible purchase of the Real Property. The Evaluation Material shall not be duplicated or used for any purpose other than as described in this Section 3.
4. Restrictions On Use and Disclosure of Evaluation Material. Reviewer agrees that it:
(a) shall keep the Evaluation Material confidential;
(b) shall restrict access to the Evaluation Material to those employees, agents, representatives and third party advisors of the Reviewer who are actively involved in the evaluation process and are also subject to an obligation to keep the Evaluation Material confidential in accordance with the terms of this Agreement;
(c) shall advise all persons given access to the Evaluation Material that it is confidential and may not be used except as herein permitted and may not be disclosed to third parties or used for any purpose other than that permitted hereby;
(d) shall not authorize any other person or entity to, communicate with any third party vendors with respect to the Real Property, with the accountants or attorneys of any such parties, or with any person or party, including any appraiser, tenant, managing or leasing agent, environmental consultant or engineering consultant, connected with, related to, or whose name is obtained from the Evaluation Material with respect to the Real Property, without prior written consent of Owner, which consent may be withheld for any reason or no reason in the sole discretion of Owner;
(e) shall not, without the prior written consent of Owner , except as may otherwise be required by law or governmental regulation, disclose to any person (i) that any investigations, discussions or negotiations are taking place concerning any transaction or any other possible transaction involving Owner and Reviewer, (ii) that it has requested or received any Evaluation Material, or (iii) any of the terms, conditions or other facts with respect to any transaction or such investigations, discussions or negotiations, including the status thereof. The term “person” as used in the agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or entity. In the event that the Reviewer is requested or becomes legally compelled to disclose any of the Evaluation Material or the fact that the Evaluation Material has been made available to the Reviewer or that discussions or negotiations between the Reviewer and Owner are taking place, the Reviewer agrees to provide Owner with prompt written notice of such request so that Owner may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement.
5. Inapplicability of Restrictions. The restrictions on use and confidentiality contained herein shall not apply to any portion of the Evaluation Material which was publicly known or generally known at the time of the disclosure or becomes public knowledge or generally known without breach of this Agreement by Reviewer or anyone given access to the Evaluation Material by Reviewer.
6. Term of Restrictions. The restrictions on use and disclosure of the Evaluation Material contained herein shall continue in effect for so long as such Evaluation Material remains confidential and proprietary to the Reviewer under applicable law, but in no event later than two (2) years after the date set forth below.
7. Return of Materials. At any time upon receipt of a written request from Owner and also upon termination of the evaluation or any resulting negotiation, Reviewer shall return all of the Evaluation Material then in its possession or in the possession of any of its employees or agents and any copies thereof or excerpts or summaries therefrom to Owner at such location and in such manner as may be reasonably requested by Owner. Reviewer shall also destroy or obliterate all Evaluation Material summarized, referred to or otherwise contained in any of Reviewer's internal memoranda or analyses that contains material other than the Evaluation Material, which it does not want to turn over to Owner, and delete from any computer system any Evaluation Material contained in computer memory and otherwise take all such actions as may be required so that it no longer has access to any of the Evaluation Material. The obligations of confidentiality and secrecy contained in this Agreement shall continue to apply to the Reviewer and be binding and enforceable upon the Reviewer following the return to Owner of the Evaluation Material.
8. Remedies. Reviewer acknowledges that if the provisions of this Agreement are breached, monetary damages alone will not be sufficient and Owner shall be entitled to equitable relief, including an injunction without proof of actual damages. In addition, if the provisions of this Agreement are breached by Reviewer or anyone given access to the Evaluation Material by or through Reviewer, Reviewer agrees to indemnify and hold harmless Owner and its trustees, members, managers, beneficiaries, employees, agents and servicers (“Owner Related Parties”), from and against any resulting loss, cost, damage or expense undertaken, paid, awarded, assessed, incurred or suffered by Owner and Owner Related Parties. Reviewer shall be liable to Owner and Owner Related Parties for all court costs, attorneys’ fees and other expenses incurred by Owner and Owner Related Parties in enforcing Owner’s rights under this Agreement, recovering damages and/or obtaining other appropriate relief.
9. Release. Reviewer acknowledges and understands that the some items in the Evaluation Material have been prepared by parties other than the Owner. Owner makes no representation or warranty whatsoever, express or implied, as to the completeness, content or accuracy of the Evaluation Material. Reviewer specifically releases Owner and Owner Related Parties from all claims, demands, causes of action, judgments, losses, damages, liabilities, costs and expenses (including attorneys’ fees whether suit is instituted or not), whether known or unknown, liquidated or contingent asserted against or incurred by Reviewer by reason of the information contained in, or that should have been contained in the Evaluation Material, however, the foregoing shall not apply to any claims resulting from any intentional misstatements or willful misconduct by Owner or Owner Related Parties.
10. Controlling Laws. This Agreement and all controversies arising from or relating to perform under this Agreement shall be deemed to be made in and shall be governed by and enforceable in accordance with the laws of the State of New Jersey, notwithstanding conflict of laws rules. Reviewer hereby irrevocably and unconditionally submits to the exclusive jurisdiction of any State or Federal court sitting in New Jersey over any suit, action, or proceeding arising out of or relating to this Agreement and irrevocably and unconditionally waives any objection to the laying of venue of any such suit, action or proceeding.
11. Entire Agreement. This Agreement contains the entire agreement between Reviewer and Owner concerning the subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by Owner and Reviewer.
IN WITNESS WHEREOF, this Agreement has been executed effective as of the Reviewer’s electronic form submission date.