Archstone North Braeswood LP c/o AvalonBay Communities, Inc. 671 N. Glebe Road, Suite 800
Arlington, VA 22203
Attention: Tim Walters, Senior VP, Investments
Property Archstone Toscano
2900 N. Braeswood Blvd. Houston, TX 77025
1. Disclosure of Information. Owner has required the execution of this agreement as a condition to making available to Recipient materials and information relating to the Property (the “Disclosed Information”). The Disclosed Information is made available to Recipient solely for Recipient’s limited use in considering whether to pursue negotiations with Owner to acquire the Property.
2. Terms of Discussions. Any sale of the Property would be on an “as‐is” basis, and Owner makes no representations or warranties, express or implied, as to the accuracy or completeness of the Disclosed Information, except as may be expressly agreed‐upon in a definitive, fully‐executed, written agreement for the purchase of the Property between Owner and Recipient (a “Definitive Agreement”). Recipient acknowledges that Owner has no obligation to sell any interest in the Property and Owner may terminate discussions with Recipient at any time, for any reason.
3. Confidential Nature. As used in this agreement, “Confidential Information” means, collectively:
(a) all of the Disclosed Information except to the extent the Disclosed Information contains information that (i) is or becomes available to Recipient on a non‐confidential basis from a source not known, nor reasonably expected, by Recipient to have an obligation to maintain the confidentiality of such information, (ii) is or becomes generally known or available to the public; or (iii)
Recipient had in its possession prior to the execution of this agreement; and
(b) the discussions between Owner and Recipient, including the fact that Owner is considering a sale of the Property.
Recipient acknowledges that the Confidential Information is maintained by Owner in strict confidence and is made available, if at all, only to persons with whom Owner engages in business and who understand the confidential nature of the Confidential Information.
4. Recipient Obligations.
4.1 Maintain Confidentiality. Recipient agrees to, and agrees to cause any of Recipient’s Advisors to, hold and treat the Confidential Information in the strictest of confidence and to employ reasonable safeguards to prevent any disclosure of Confidential Information in breach of this agreement. Without the prior written authorization of Owner, neither Recipient nor any of Recipient’s
Advisors will, directly or indirectly, disclose the Confidential Information to any other person except (i) to Recipient’s consultants, potential lenders or investors, legal counsel, financial advisors, and accountants who have reasonable need to know in order to assist with evaluating, negotiating, or completing a transaction regarding the Property and who Recipient has advised of the confidential nature of the Confidential Information (collectively, “Recipient’s Advisors”); and (ii) to the extent that disclosure is required by a court of competent jurisdiction or by applicable law, provided that Recipient gives Owner and Broker reasonable prior written notice of such disclosure. Recipient will be responsible for any breach of this agreement by any of its directors, officers or employees. Recipient will disclose the existence of this agreement to Recipient’s Advisors and will cause the Recipient’s Advisors to comply with the terms of this agreement.
4.2. No Contact. Recipient agrees not to contact the tenants, employees, or property management staff of the Property, or any lenders, vendors, or other parties identified in the Disclosed Information providing financing, goods, or services to the Property.
4.3. Return of Materials. Upon request of Owner, Recipient shall return all Confidential Information to Owner or certify to Owner that Recipient has destroyed all Confidential Information, except to the extent that Recipient is required to retain the Confidential Information to comply with applicable law.
5. Indemnity. Recipient hereby indemnifies Owner for any loss, costs, claims or damages resulting from the disclosure of the Confidential Information by Recipient or any of Recipient’s Advisors in violation of the terms of this agreement.
6. Remedies. Owner shall be entitled to pursue any remedies available to it, at law or in equity, including injunctive relief, in the event of a breach of this agreement by Recipient. Recipient agrees that the remedy at law for any breach of this agreement may be inadequate and that the damages flowing from such breach may not be readily susceptible of being measured in monetary terms. Recipient agrees that upon any violation or threatened violation of this agreement by Recipient, Owner shall be entitled, among other remedies, to immediate injunctive relief, and Owner may obtain a temporary restraining order and injunction restraining any breach or threatened breach without the necessity of posting bond. Nothing in this agreement will be deemed to limit Owner’s remedies at law or in equity with respect to any breach of this agreement.
7. Expiration. Recipient’s obligations under this agreement shall remain in force until the earlier of: (i) the execution by Recipient and Owner of a Definitive Agreement, or (ii) one (1) year following the Effective Date.
8. Miscellaneous. No modification or discharge of this agreement, and no waiver under this agreement, shall be valid or binding unless in writing and executed by the party against whom enforcement of the modification, discharge or waiver is sought. This agreement constitutes the entire agreement among the parties with respect to the subject matter of this agreement, and this agreement supersedes all prior oral or written agreements, commitments or understandings with respect to such matters. This agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. This agreement may be signed in counterparts, each of which shall be deemed to be an original. All counterparts shall collectively constitute a single agreement.