Confidentiality Agreement
We have been advised that Warmbrodt Hotel Investments, Inc. ("WHI") has been retained by Owner, as the exclusive agent to arrange a sale of the Hotel or Hotels listed below. Interested parties should direct all inquiries through WHI, the Sellers exclusive broker, and should not contact the Property or Owner directly.
We have requested that you furnish us with certain information concerning the Hotel. This information may include without limitation, an offering memorandum, access to the Hotel website, or materials and various other documents and other data concerning the Hotel (collectively, "Evaluation Material"). We acknowledge and agree that the Evaluation Material will be furnished to us only on the condition that we agree to treat the Evaluation Material in strict confidence in accordance with the following terms and conditions
1. All Evaluation Material relating to the Hotel which may be furnished to any Recipient (as hereinafter defined) shall continue to be the property of the Seller and/or WHI, as the case may be. The Evaluation Material will be used by the Recipient solely for the purpose of evaluating the possible acquisition of the Hotel.
2. We agree to keep all Evaluation Material, including access to the Hotel website, strictly confidential and shall not disclose the contents thereof to any person without WHI's prior written consent; provided, however, that the Evaluation Material may be disclosed to our key employees, and the Recipient's outside counsel, accountants, partners and institutional lenders where applicable, or like parties acting on behalf of Recipient on a strictly "need to know" basis, and solely for the purposes set forth herein. We, together with any person to whom disclosure of all or any portion of the Evaluation Material is made, pursuant to the terms hereof, are referred to herein individually and collectively as "Recipients." All Recipients shall be informed by us of the confidential nature of such Evaluation Material. The provisions of this Paragraph 2 shall not apply to information which is or comes into the public domain or becomes subject to a properly issued subpoena.
3. We acknowledge and agree that neither Seller nor WHI make any representation or warranty whatsoever as to the accuracy or completeness of the Evaluation Material. Any financial information and/or projections contained in the Evaluation Material represent estimates based on assumptions believed to be reasonable under the circumstances, although they have not been independently verified. WHI and Seller expressly disclaim any and all liability for representations or warranties, express or implied, that actual results will conform to such projections; and we agree that neither WHI nor Seller shall have any liability to us or to any Recipient resulting from our or their use or reliance upon the Evaluation Material, whether or not a purchase of the Hotel is consummated. We represent that we will conduct our own independent investigations for all those matters which we deem necessary or appropriate in order to evaluate any proposed transaction involving the Hotel.
4. We agree to be responsible for the payment of any fee, commission or other compensation payable to any broker, finder or agent who alleges it has dealt with or through us, other than WHI, and WHI shall have no obligations to share any part of its commission with any broker, agent, finder or any other person or entity who alleges it has dealt with or through us. We hereby agree to indemnify, defend and hold Seller and WHI harmless from and against any and all claims, damages, losses and liabilities, costs and expenses (including reasonable attorneys' fees and disbursements) arising out of any claim or claims by any broker, finder or similar agent for commissions, fees or other compensation who allege that they have dealt with us in connection with the Hotel.
5. As used herein, the term "person" shall include, without limitation, any natural person, any corporation, limited liability company, partnership, limited partners, trust, pension fund, association or other entity of any nature whatsoever.
6. We understand and agree that money damages may not be a sufficient remedy for any breach of this Agreement and that Seller and WHI shall be entitled to specific performance and injunctive or other equitable relief, in addition to money damages, if appropriate, as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for breach of this Agreement, but shall be in addition to all other remedies at law or equity to Seller and WHI.
7. This Agreement contains the entire agreement of the parties hereto with respect to the matters contemplated herein and supersedes any prior agreements or understandings with respect to the subject matter hereof. This Agreement may not be amended or terminated nor any of its provisions waived except by an instrument in writing signed by the party against whom such amendment, termination or waiver is sought to be enforced. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns and shall be governed by and construed in accordance with the internal laws of the State in which the Hotel or Hotels are located, without regard to principles of conflict of laws.
8. This Agreement shall terminate on the First Anniversery of the date of execution hereof by the undersigned.
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