Valley Fair Mall – Olive Garden Ground Lease Investment

This Confidentiality and Non-Circumvent Agreement is made by and between:

Mountain West Commercial, a d/b/a for Mountain West Commercial, LLC (“Agent”), and the recipient whose information is entered into the form below (herein ‘Recipients’).

In the course of Recipients’ due diligence investigation of the Property, Recipients have requested and Agent has provided or agreed to provide certain confidential and proprietary information (including the location and owner of the Property) concerning the Property (“Information”) which Recipients have agreed to use solely for the purpose of evaluating the potential purchase transaction and to maintain in a confidential manner.

AGREEMENT:

NOW THEREFORE, in consideration of the covenants and conditions hereinafter set forth, the parties agree as follows:

1. CONFIDENTIALITY. As a condition to the Agent furnishing the information to the Recipients, the Recipients agree to treat and handle confidentially the Information and any other information which it obtains concerning the Property during the course of its review, whether furnished before or after the date of this Agreement. Each of the named signatories, confirms that every agent, organization, firm or person to which the signatories belong or for which they act as agents, employees or any other quality and who could benefit from a piece of information on this purpose are linked by this Agreement.
2. NON-CIRCUMVENT. Recipients agree as an entity and for each signator separately and individually, and their associates, corporations, divisions, subsidiaries, employees, agents or consultants will not act separate or apart from Mountain West Commercial in pursuing any interest in the Property(ies) or have any contract with, deal with or otherwise become involved in any aspect of the Property(ies) that would in any manner or sense circumvent Mountain West Commercial or its principals’ interests in the Property(ies) as it has been described in this Agreement. This Agreement is also effective for the signatories as an entity and individually their heirs, assignees, and designees. By signature below and execution of this Agreement, each of the named signatories, separately and individually, and their associates confirm that any corporation, organization, firm, company or individual, partnership, or other entity, of which the signatory is a party to, member or principal agent to, employees of or otherwise would benefit financially from an association is bound by this Agreement.
3. NO DETRIMENTAL USE. The Recipients agree that the Information will not be used by the Recipients in any way detrimental to the current owner of the Property (“Owner”), and that such Information will be kept confidential by the Recipients; provided, however, that (I) any of the Information may be disclosed to the representatives of the Recipients who need to know such Information for the purposed of evaluating a possible transaction between the Recipients and the Owner, (it being understood and agreed that such representatives shall be informed by the Recipients of the confidential nature of the Information and shall be directed by the Recipients to treat such information confidentially); and (ii) any disclosure of the Information may otherwise be made, provide the Owner consents in writing. The Recipients agrees that they will make use of the Information only for the purpose specified in this Agreement and will not use the Information for the purpose of competing with the Owner or otherwise for its benefit at any time in the future. The Recipients agree that they will not knowingly permit or facilitate such use by any other person or entity without the prior written consent of the Owner.
4. DISCLOSURE OF DISCUSSIONS. Without the prior written consent of the Owner, the Recipients shall not, and will direct their representatives not to, disclose to any person or entity the fact that discussions or negotiations may take place or are taking place concerning a possible transaction between the Recipients and the Owner or any of the terms, conditions, or other facts with respect to any such possible transaction, including the status thereof.
5. REPRESENTATIVE. For the purposes of this Agreement, a “representative” means an officer or employee of the Recipients, or a law firm, public accounting firm, real estate broker, or other entity or person (and their employees) who, in good faith judgment of the Recipients, needs to have access to some or all of the Information for the purpose of evaluating any possible transaction. In the event that the Recipients elect to disclose, in good faith, any of the Information to a representative, such representative will be bound by the terms and conditions of this Agreement, and the representative shall be jointly and severally liable with the Recipients to the Owner for any breach thereof.
6. DISCLOSURES REQUIRED BY LAW. In the event that the Recipients are requested or required by law to disclose any of the Information, it is agreed that the Recipients will provide the Owner with prompt prior notice of such request so that the Owner may seek an appropriate protective order and/or waive compliance with the provisions of this Agreement.
7. NO REPRESENTATION OR WARRANTY. Although the Agent and the Owner have endeavored to include in the Information known to them which they believe to be relevant for the purpose of the Recipients’ evaluation of this potential acquisition, the Recipients understands, acknowledges and agrees that each of the Agent\'s Brokers and the Owner do not make any representation or warranty (and specifically disclaims any express or implied warranty) as to the accuracy or completeness of the Information or as to the ability of the Recipients or any other party to rely thereupon. The Recipients’ covenants, represents and warrants that each of the Agents and the Owner shall not have any liability to the Recipients nor any of its partners, members, property managers, officers, employees and representatives in any manner arising from the use of or reliance on the Information by the Recipients or their partners, members, property managers, officers, employees and/or representatives. The Recipients further acknowledges and agrees that it is solely the Recipients’ responsibility to conduct investigations of the condition of the Property(ies) to determine the presence or existence of any hazardous materials, toxic substances and similar contaminants and pollutants.
8. RETURN OF MATERIALS. At the request of the Owner, the Recipients shall promptly return to the Owner all written material containing or reflecting any Information contained in the Information (whether prepared by the Owner or otherwise.) In addition, the Recipients and its representatives will not retain any copies, extracts or reproductions, in whole or in part, of the Information. The Recipients shall thereafter destroy all documents, memoranda, notes or other writings prepared by the Recipients, or their representatives, which are based on the Information.
9. INJUNCTIVE RELIEF. The Recipients acknowledge that the remedy at law for any breach by it of the terms of this Agreement shall be inadequate and that the damages resulting from such breach by it of the terms of this Agreement shall be inadequate and that the damages resulting from such breach are not readily susceptible to being measure in monetary terms. Accordingly, in the event of a breach or threatened breach by the Recipients of the terms of this Agreement, the Owner shall be entitled to immediate injunctive relief and may obtain a temporary order restraining any threatened or further breach. Nothing herein shall be construed as prohibiting the Owner from pursuing any other remedies available to the Owner for such breach or threatened breach, including the recovery of damages from the Recipients. The Recipients further represent that they understand and agrees that the provisions of this Agreement shall be strictly enforced and construed against them.
10. NONWAIVER. It is further agreed that no failure or delay by the Owner in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise thereof or the exercise of any right, power or privilege hereunder.
11. ASSIGNMENT. The Recipients shall not and may not assign their rights, obligations and interest in this Agreement to any other person or entity, without first obtaining each of the Agent’s and the Owner\'s written consent thereto. Any attempted assignment in violation of the foregoing provisions shall be null and void. This Agreement shall inure to the benefit of and be binding upon the parties to this Agreement and their respective successors and permitted assigns.
12. ENTIRE AGREEMENT. This Agreement expresses the entire agreement of the parties and supersedes any and all previous agreements between the parties with regard to the subject matter hereof. There are no other understandings, oral or written, which in any way alter or enlarge its terms, and there are no warranties or representations of any nature whatsoever, either expressed or implied, except as may be set forth herein. Any and all future modifications of this Agreement will be effective only if it is in writing and signed by the parties hereto. The terms and conditions of any and all future modifications of this Agreement shall supersede and replace any inconsistent provisions in this Agreement.
13. COUNTERPART. This Agreement may be executed in two or more counterparts, each of which shall be deemed originals, and all of which taken together shall constitute one instrument

The Agent is providing you with this Agreement as a condition to the commencement of the Agent’s and the Owner's negotiations with the Recipients for the acquisition of the Property. Please sign and return a copy of this Agreement where indicated to confirm your agreement and acceptance of the terms hereof.