CONFIDENTIALITY AGREEMENT
Black Dog Receiver, LLC (“Provider”) has agreed to make available to the undersigned (“Recipient”) certain information relating to the asset(s) listed on Schedule A hereto (collectively, the “Asset”) so that Recipient may evaluate a potential transaction with respect thereto (the “Transaction”), provided that the Recipient enter into this Confidentiality Agreement (this “Agreement”) to assure the confidentiality of such information and the confidentiality of the discussions between the parties. Recipient and Provider hereby agrees as follows:
- Confidential Information. The term “Confidential Information” as used in this Agreement shall mean all information and materials (in written, electronic or other media, or provided verbally to the Recipient) concerning or relating to the Transaction, the Asset, the Provider or otherwise, which is provided by or on behalf of the Provider to the Recipient or Recipient’s Representatives (as defined below). The information set forth in any term sheet or draft agreements relating to the Transaction, and the nature of any business relationship that may be formed between Provider and Recipient, also constitute Confidential Information, as do the notes, reports, summaries, analyses, compilations and other materials in any format of Recipient or Recipient’s Representatives to the extent based upon Confidential Information. The term “Confidential Information” shall not include the following: (a) information which at the time of disclosure by Provider is publicly available, or information which later becomes publicly available through no act or omission of the Recipient or any of Recipient’s Representatives (as hereinafter defined) in breach of this Agreement; (b) information which Recipient can demonstrate by contemporaneous records was in the possession of Recipient prior to disclosure by Provider; (c) information received by Recipient or Recipient’s Representatives from a third party who, to Recipient’s knowledge, did not acquire such information on a confidential basis from Provider; or (d) information which was independently developed by of for Recipient or any of Recipient’s Representatives and which does not contain, in whole or in part, Confidential Information.
- Disclosure and Use of Confidential Information. Recipient acknowledges that Recipient is to be given access to the Confidential Information solely for purposes of determining whether to bid on and/or acquire the Asset and that execution of this Agreement is a material condition precedent to Provider to induce Provider to disclose such Confidential Information. Recipient agrees to keep confidential all Confidential Information which Recipient may obtain, receive, or gain access to during the course of discussions or negotiations regarding the Transaction and/or are otherwise provided to it by or on behalf of the Provider or any of Provider’s Representatives and shall not, without Provider’s prior written consent, which may be given or withheld in its sole and absolute discretion, disclose such Confidential Information to any third party, except as permitted by this Section 2 or Section 3 The Recipient shall limit the disclosure of the Confidential Information to the employees, officers, directors, counsel, accountants, auditors, consultants, capital partners, debt and/or equity sources, and potential debt and/or equity sources of Recipient or Recipient’s affiliates who require access to the Confidential Information to assist Recipient in its evaluation of the Transaction or the Asset (collectively, “Recipient’s Representatives”). Recipient shall use the Confidential Information only for the purpose of its evaluation, negotiation and consummation of the Transaction (and anything incidental thereto) and hereby acknowledges and agrees that it shall not make any other use of any of the Confidential Information without the prior written consent of the Provider, which may be given or withheld in Provider’s sole and absolute discretion. Recipient shall use at least the same degree of care to avoid the publication, disclosure, reproduction, or other dissemination of the Confidential Information as employed by Recipient with respect to its own valuable, proprietary information to ensure protection from unauthorized publication, disclosure, reproduction, or other dissemination; however, in no event less than a reasonable degree of care. Recipient shall inform those Recipient’s Representatives who receive Confidential Information of the confidential nature of the Confidential Information and the terms and conditions of this Agreement as if it was Recipient. Notwithstanding, Recipient shall be responsible for any breach of this Agreement by it or any of Recipient’s Representatives.
- Required Disclosure. If and to the extent that, in the opinion of legal counsel, Recipient is required by a court of competent jurisdiction, or by a judicial, administrative or legislative body or process or as otherwise may be required by applicable law to disclose any Confidential Information, Recipient shall, to the extent legally permitted, provide prompt written notice thereof to Provider and shall reasonably cooperate with Provider, at Provider’s sole cost and expense, in any reasonable attempt that the Provider may make to obtain a protective order or other equitable relief to preserve the confidentiality of the Confidential Information, or reliable written assurance that confidential treatment will be accorded to Confidential Information so disclosed. If Recipient is nevertheless compelled to disclose any Confidential Information, Recipient may make such disclosure without liability hereunder, provided that, the Recipient furnish only that portion of the Confidential Information it is advised by counsel is legally required.
- Destruction of Documents. Recipient agrees to destroy any and all Confidential Information upon the written request of the Provider. Notwithstanding the foregoing, to the extent required for legal or regulatory purposes or to satisfy internal compliance or bona fide record retention policies and procedures, Recipient may retain Confidential Information, provided that any Confidential Information so retained shall continue to be held subject to the confidentiality and non-disclosure provisions herein. Recipient shall not be required to expunge any Confidential Information located on backup servers and similar devices except in the ordinary course of business consistent with industry practices.
- Term. This Agreement shall be effective on the date this Agreement has been fully executed and delivered to the parties, as set forth below, and shall continue in effect for a period of one (1) year following such effective date.
- Remedies. Recipient hereby acknowledges that money damages may not be an adequate remedy for any breach of this Agreement by the Recipient or any of Recipient’s Representatives and agrees that, in addition to any and all other remedies which may be available to Provider at law or in equity, Provider shall be entitled to seek specific performance and immediate preliminary and/or permanent injunctive relief or other equitable relief, without bond and without the necessity of exhausting any other remedies for any such breach or threatened breach, as a remedy for any such breach or threatened breach.
- No Representation or Warranties. Provider does not hereby make any representations or warranties with respect to the accuracy and/or completeness of any Confidential Information disclosed to Recipient, except as may be set forth in a Definitive Agreement. All Confidential Information which may be furnished to Recipient and/or any of its Representatives by or on behalf of the Provider shall continue to be the property of the Provider. Provider shall have no liability whatsoever to Recipient resulting from Recipient’s use of the Confidential Information. Recipient understands and agrees that all Assets will be sold “WHERE IS” and in “AS IS” condition without any warranty as to condition, express or implied, and without any representation or warranty as to the accuracy of the Confidential Information, unless otherwise set forth in a signed, written agreement. Recipient represents that Recipient and Recipient’s Representatives, without reliance on the Confidential Information, have the expertise and experience to evaluate the issues and risks in purchasing the Asset.
- Miscellaneous.
- This Agreement shall be governed by and construed in accordance with the laws of the State in which the Asset is located (or, if more than two Assets in different States, the State of Maryland), without regard to its conflicts of law principles.
- Each party hereto unconditionally waives any right to trial by jury.
- This Agreement is not and shall not be construed as any form of a letter of intent or agreement to enter into any type of transaction or specific contractual arrangement of any nature whatsoever and notwithstanding anything to the contrary contained herein or otherwise, the Recipient and Provider acknowledge and agree that neither party is obligated (by virtue of entering into this Agreement or otherwise) to enter into the Transaction.
- This Agreement is not assignable by either party without the prior written consent of the other and shall be binding upon the successors and permitted assigns of the parties.
- Any delay or failure to exercise any right or remedies hereunder shall not: (i) impair such right or remedy; (ii) be construed as a waiver thereof or an acquiescence in the breach of this Agreement; or (iii) constitute a waiver of future enforcement of that provision or of any other provision hereunder by Provider.
- This Agreement contains the entire Agreement and understanding between the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements. This Agreement may only be modified or amended by a signed writing.
- Recipient hereby represents and warrants that it has the requisite authority to enter into and be bound by the terms hereof and the execution of this Agreement by the person below has been duly authorized.
- This Agreement may be executed and delivered in counterpart by facsimile or by email of a scanned image of the original or other by other electronic or digital signature process, each of which shall have the same legal effect as an original signature and all of which, when taken together, shall constitute the same Agreement.
- Non-Interference. Without the prior written consent of Provider, Recipient shall not have any contact with any person or entity identified in the Confidential Information for any purposes related to the Confidential Information or Asset. Without limitation, Recipient shall be liable for all actual and consequential damages arising out of, and shall hold harmless Provider from, any breach of this provision or any other provision of this Agreement.
- Attorneys Fees. In the event of any controversy or dispute arising out of this Agreement, the substantially prevailing party/ies shall be entitled to recover from the non-substantially prevailing party/ies its/their reasonable expenses, including, but not limited to, its/their reasonable attorneys’ fees and other costs.
IN WITNESS WHEREOF, intending to be legally bound hereby, the Recipient and Provider have executed and delivered this Agreement as of the dates set forth below, the later of which shall be deemed to be the date of this Agreement.
Recipient:
By:
Name:
Title:
Date:
Address:
Contact:
Email:
Phone:
Provider:
black dog receiver, llc
By:
Name: David H. Bowan
Title: Managing Memberr
Date:
Address: 2732 Howard Grove Road
Davidsonville, MD 21035
Contact: David H. Bowman
Email: dhbblackdogreceiver@aol.com
Phone: (240) 731-1028
SCHEDULE A
ASSETS
Name: Broadcast Apartments
Address: 4620 Wisconsin Avenue NW, Washington DC
Legal Description:
