IF YOU ARE THE BORROWER, DEBTOR, GUARANTOR OR OTHER OBLIGOR WITH RESPECT TO THIS LOAN, OR AN AFFILIATE, REPRESENTATIVE, AGENT, ACCOUNTANT OR ATTORNEY OF ANY SUCH PARTY, THEN YOU ARE RESTRICTED FROM EXECUTING THIS CONFIDENTIALITY AGREEMENT. PLEASE CONTACT THE LOAN SALE ADVISOR FOR FURTHER INFORMATION.
This Confidentiality Agreement (the "Agreement"), effective as of the date first accepted by you (the "Effective Date"), is entered into by and between Apex Commercial Exchange, LLC, a Delaware limited liability company (together with its affiliates and subsidiaries, the "Company") and you, the party seeking access to information provided by or on the exchange administered by the Company (the "Recipient").
WHEREAS, in connection with the Recipient's access to a listing exchange administered by the Company with respect to the purchase and sale of real property, loans and any other assets (the "Transaction"), the Recipient has requested access to the exchange and, in connection therewith, may view or receive certain information which is non-public, confidential, or proprietary in nature; and
WHEREAS, the Company, on behalf of itself and the potential sellers and borrowers on its exchange, wishes to protect and preserve the confidentiality of such information.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
(a) "Evaluation Material" means all information, data, documents, agreements, files, technical information, websites, content associate therewith, financial statements, tenant information, intellectual property, environmental reports and other materials (in any form or medium of communication, including whether disclosed orally or disclosed or stored in written, electronic, or other form or media) whether or not marked or otherwise identified as "confidential," which is obtained from or disclosed by the Company or its Representatives before, on or after the date hereof in connection with Recipient’s access to the exchange administered by the Company, including, without limitation, the existence of an auction process with respect to any property or loans therefore and all communications, negotiations and related information, and all analyses, compilations, reports, forecasts, studies, samples, and other documents prepared by or for the Recipient which contain or otherwise reflect or are generated from the foregoing materials.
(b) "Person" means any individual, partnership (whether general or limited), limited liability company, corporation, association, trust, member of a joint venture entity, or other entity.
(c) "Representatives" means, as to any Person, such Person's affiliates, and its and their respective directors, officers, employees, agents, consultants and advisors (including attorneys, financial advisors, and accountants).
(d) "Transaction" means Recipient’s potential purchase of a property, loan or other asset listed on the exchange, or any other potential transaction for which Recipient is accessing the exchange.
2. Use and Disclosure of Evaluation Material. The Recipient shall keep the Evaluation Material strictly confidential and shall not use the Evaluation Material for any purpose other than to evaluate, negotiate, and consummate a potential Transaction. The Recipient shall not disclose or make available, or permit its Representatives to disclose or make available, any Evaluation Material to any Person other than to its Representatives solely to the extent necessary to permit such Representatives to assist the Recipient in evaluating, negotiating, and consummating a potential Transaction; provided, that the Recipient shall inform its Representatives of the terms of this Agreement and instruct them to comply. The Recipient agrees to use commercially reasonable controls to prevent unauthorized use or disclosure of the Evaluation Material (but in any event no less than the degree of care and control that the Recipient uses to protect its own confidential information of similar importance). The Recipient shall promptly notify the Company of any unauthorized use or disclosure of the Evaluation Material of which the Recipient has become aware. The Recipient shall be responsible for any breach of this Agreement by any of its Representatives. When the Transaction is for, involves, or is related to, the purchase of a commercial mortgage, Recipient shall not contact the borrower or any of its representatives or affiliates and Recipient hereby affirmatively waives all rights to access or inspect the collateral property.
3. No Representations or Warranties; No Other Obligation. The Recipient understands and agrees that none of the Company or any of its Representatives: (a) have made or make any representation or warranty hereunder, expressed or implied, as to the accuracy or completeness of the Evaluation Material; or (b) shall have any liability hereunder to the Recipient or its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. The parties agree that unless and until a definitive agreement between the Recipient and a seller listed on the exchange administer by the Company (or one or more of their respective affiliates) has been executed and delivered with respect to any possible Transaction, none of the Company, any such seller or any of their respective affiliates will be under any legal obligation of any kind whatsoever with respect to any potential Transaction, including any obligation to (x) consummate a Transaction; (y) conduct or continue discussions or negotiations; or (z) enter into or negotiate a definitive agreement. Any seller listed on the exchange administered by the Company reserves the right, in its sole discretion, to reject any and all proposals made by the Recipient or on its behalf with regard to any potential Transaction and/or to enter into any agreement with any other Person without notice to the Recipient or any of its Representatives, at any time and for any reason or no reason.
4. Return or Destruction of Evaluation Material. Upon termination of the Recipient's evaluation of a potential Transaction, or at any time upon the Company's written request, the Recipient shall promptly, and in any event no later than five days after the request, return all Evaluation Material (including all copies, extracts or other reproductions) to the Company or certify in writing to the Company within such time frame that such Evaluation Material (including any Evaluation Material held electronically) has been destroyed.
5. Non-Circumvention. Without the prior written consent of the Company, you shall not contact any seller or potential borrower regarding any potential Transaction for which you have accessed the exchange administered by the Company.
6. Remedies. The Recipient acknowledges and agrees that money damages would not be a sufficient remedy for breach of this Agreement by the Recipient or any of its Representatives. Therefore, in addition to all other remedies available at law (which the Company does not waive by the exercise of any rights hereunder), the Company shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach without the requirement for the securing or posting of any bond or other security by the Company. The Recipient further agrees that it will not oppose the granting of such relief on the basis that the Company has an adequate remedy at law.
7. Indemnification. Recipient and its Representatives shall indemnify, defend and hold harmless the Company from and against all losses, claims, expenses and/or damages resulting from any breach of this Agreement. Recipient hereby releases the Company from all claims arising from the Evaluation Material, or information that should have been contained therein.
8. Term. This Agreement shall terminate on the earlier to occur of (a) the closing of a Transaction; and (b) a period of two (2) years after the Effective Date; provided that no termination shall relieve either party from a breach occurring prior to the termination of this Agreement.
9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of State of Delaware.
10. Entire Agreement; Amendments. This Agreement sets forth the entire agreement between the parties regarding the Evaluation Material and all other subject matters set forth herein, and supersedes all prior negotiations, understandings, and agreements (both written and oral) on such matters. No provision of this Agreement may be modified, waived, or changed except by a writing signed by the parties hereto.
11. Severability. If any provision of this Agreement, or the application thereof to any Person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such provision as applied to other Persons, places, or circumstances shall remain in full force and effect.
12. Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any party without the prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable.
13. Waivers. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
15. Terms of Use. Recipient acknowledges and agrees that access to the Evaluation Materials, and acceptance of this Agreement, is available only for the limited purposes and uses set forth in our Terms of Use (acexchange.com/terms-of-use). Any and all other uses are strictly prohibited.
16. Electronic Acceptance: By clicking the “ACCEPT” button, Recipient acknowledges, accepts and agrees to the terms of this Agreement. Such electronic acceptance shall be binding and enforceable pursuant to Electronic Signatures in Global and National Commerce Act, Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act, and applicable state laws.