The Q Hotel & Suites Springfield, MO Confidentiality Agreement
The undersigned (“Recipient”) has entered into this Confidentiality Agreement (this “Agreement”) is made on the date written below for the benefit of John Q Hammons Fall 2006, LLC (collectively, “Atrium”) and Paramount Lodging Advisors, LLC (“Broker”).
1. Transaction. Recipient intends to enter into discussions with Atrium and Broker regarding the potential sale of the The Q Hotel & Suites located at 1117 E St Louis St, Springfield, MO 65806 (the “Transaction”). Recipient has requested certain proprietary and confidential information of Atrium or its affiliates or related entities (which, together with Atrium, are referred to each as an “Atrium Entity” and collectively as the “Atrium Entities”) in connection with the Transaction. Atrium is willing to provide such information to Recipient on the condition that Recipient complies with the confidentiality obligations and other terms in this Agreement.
2. Confidential Information. The term “Confidential Information” means all information (whether in the form of verbal or written communications, documents, materials, electronic media or otherwise, and regardless of whether marked as “confidential”) provided by any Atrium Entity, Broker or any person or entity acting for or on behalf of any Atrium Entity, to Recipient or any person or entity acting for or on behalf of Recipient, in connection with the Transaction (whether provided before, on or after the date of this Agreement), including, without limitation, information regarding the ownership structure, business operations, assets, liabilities and other financial information of any Atrium Entity. The fact that the parties are discussing the Transaction and the substance of such discussions also constitute “Confidential Information.” Notwithstanding the foregoing, “Confidential Information” does not include information that (a) is or becomes generally available to the public other than as a result of a breach of this Agreement, (b) is or becomes known to Recipient through a person or entity having the right to disclose such information to Recipient on a non-confidential basis, or if such person or entity did not have the right to disclose such Confidential Information, Recipient was not aware that the disclosure was prohibited by a confidentiality agreement or other contractual, legal or fiduciary duty or obligation of such person or entity at the time of such disclosure, or (c) is independently developed by Recipient without reference to the Confidential Information. All provisions in this Agreement regarding the use, disclosure and disposal of Confidential Information shall apply to all (a) copies or other reproductions of any Confidential Information made by, for or on behalf of Recipient, and (b) summaries, abstracts, compilations, analyses and other documents or materials produced by, for or on behalf of Recipient that includes any Confidential Information.
3. Non-Disclosure and Limited Use of Confidential Information. Recipient shall use the Confidential Information only for the purpose of evaluating the Transaction, and for no other purpose. Recipient shall keep the Confidential Information strictly confidential, not disclose or otherwise make available any Confidential Information to any person or entity, and not discuss any Confidential Information with any person or entity, in each case without the prior written authorization of Atrium, except that:
(a) Recipient may disclose Confidential Information to any of its officers, employees, representatives, attorneys, investors or lenders (each such person or entity that receives any Confidential Information is referred to each as a “Representative” and collectively as the “Representatives”) on a “need-to- know” basis to the extent the assistance of such Representative is required to evaluate the Transaction, provided that Recipient shall advise them of the confidentiality of such Confidential Information and the terms of this Agreement. A failure of any Representative to comply with any obligations of Recipient under this Agreement shall be a breach of this Agreement by Recipient.
(b) Recipient and its Representatives may disclose Confidential Information to any person or entity to the extent requested or required by court order, governmental authority or applicable law or legal process, provided that Recipient and its Representatives shall, to the extent legally permissible, advise Atrium promptly upon receiving any request or requirement for such Confidential Information or becoming aware of any disclosure obligation under applicable law. Atrium shall have the right to seek a court order or agreement with the person or entity requesting or requiring such Confidential Information to prevent or limit the extent of such disclosure before Recipient or its Representatives disclose such Confidential Information, and Recipient and its Representatives shall cooperate with Atrium in a reasonable manner to contest or narrow the scope of such disclosure.
4. Ownership of Confidential Information. Recipient acknowledges that Atrium retains exclusive ownership of the Confidential Information, and Recipient shall not acquire any right or interest whatsoever in any Confidential Information.
5. Disposal of Confidential Information. On the earlier of (a) a written request from Atrium to Recipient, or (b) the date that Recipient elects not to pursue the Transaction, Recipient promptly shall return or destroy all Confidential Information as specifically requested by Atrium and confirm in writing that Recipient has completed such destruction in accordance with this Agreement, except for such Confidential Information that Recipient is required to retain under applicable law or pursuant to a records retention policy for the purposes of complying with applicable law, provided that any such Confidential Information retained by Recipient shall continue to be subject to the terms of this Agreement.
6. Communications. All inquiries and other communications regarding the Transaction must be directed only to Atrium, unless otherwise directed by Atrium in writing. Recipient and the Representatives shall not (a) disclose to any person or entity (other than other Representatives or as required by applicable laws) the fact that the Parties are discussing the Transaction or the substance of such discussions, or (b) have any communication with any lenders or equity owners of Atrium or any Atrium Entities (other than other Atrium Entities), or employees at any of the Properties, regarding the Transaction, including, without limitation, the hotel or any loan secured by the hotel or any direct or indirect ownership interests in the hotel.
7. No Representation, Warranty or Guaranty. No Atrium Entity makes any representation, warranty or guaranty whatsoever with respect to any Confidential Information, including, without limitation, the accuracy or completeness of any Confidential Information, and no Atrium Entity shall have any liability for Recipient’s or any Representative’s use of or reliance on any Confidential Information.
8. Remedies. Recipient acknowledges and agrees that a breach of this Agreement could cause immediate, substantial and irreparable harm to the Atrium Entities, and monetary damages might be incalculable or might not provide an adequate remedy for such breach. Accordingly, Recipient agrees that the Atrium Entities shall have the right to obtain any equitable remedy, including, without limitation, an injunction or specific performance, for any breach or anticipatory breach of this Agreement by Recipient or any Representative, and Recipient will not contest Atrium’s request for such remedy on the grounds that Atrium has an adequate remedy at law. Such remedy shall not be exclusive, but shall be in addition to any other rights or remedies available at law or in equity for such breach.
9. Broker. Recipient has been advised that Broker has been retained on an exclusive basis by Atrium for the solicitation of offers for the purchase of the Property. All inquiries and communications regarding the Transaction must be directed to Broker. All fees due to Broker relating to the Transaction shall be paid by Atrium. Recipient acknowledges that (1) Recipient is a principal in the Transaction and shall not claim any fees or commissions from Atrium or Broker relating to the Transaction, and (2) Recipient has not dealt with any broker or other person or entity (other than Broker) regarding the Transaction, or if Recipient has dealt with any other broker or other person or entity (“Recipient’s Broker”), Recipient shall pay all amounts due to Recipient’s Broker and indemnify Atrium and Broker from and against any liability, damage, loss, cost or expense incurred by any Atrium Entity or Broker for any claim by Recipient’s Broker relating to the Transaction.
10. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. Any litigation or other legal proceedings with respect to any matter arising from or in connection with this Agreement shall be conducted in the courts of the Chancery Court in the State of Delaware or the United States District Court for the District of Delaware. The parties hereby submit to the jurisdiction of such courts, and consent to venue in Delaware.
11. Term. This Agreement shall expire on the date that is two years after the date of this Agreement.
12. Assignment. Recipient shall not assign this Agreement or any right or obligation under this Agreement without the prior written consent of Atrium, which may be withheld in its sole and absolute discretion.
13. Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law, the remainder of this Agreement shall not be affected and shall remain valid and enforceable for all purposes, and the parties shall negotiate in good faith to agree to a provision to replace the invalid or unenforceable provision that as nearly as possible validly gives effect to their intentions as expressed in this Agreement.
14. No Agreement for Transaction. Recipient expressly acknowledges and agrees that this Agreement does not create any obligation whatsoever on Atrium to provide any Confidential Information to Recipient or enter into any further agreement with Recipient regarding the Transaction at any time for any reason or no reason, with or without notice.
15. Entire Agreement. This Agreement sets forth the entire agreement between the parties as of the date of this Agreement and supersedes all prior agreements and understandings (oral or written) between the parties, regarding the Confidential Information and Transaction.
16. Amendments and Waivers. This Agreement shall not be amended or terminated, and no obligation of a party shall be waived, except by written instrument signed by the parties.
Recipient has caused this Agreement to be signed by a duly authorized representative of Recipient.