RACER Confidentiality Agreement

Instructions

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THIS CONFIDENTIALITY AGREEMENT (the "Agreement") is by and between the Revitalizing Auto Communities Environmental Response Trust ("RACER" or "Trust) and (the "Company") as follows:

Legal Address

Address Two

City

USA

Canada

Zip Code/Postal Code

Phone Number
WHEREAS, RACER and Company (the "Parties") desire to exchange certain Confidential Information in connection with the Company's potential purchase (the "Purchase") from RACER or its subsidiary, of certain real property located at

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Select a Property

Other Value:
(the "Property"); and
Note to agents such as brokers and attorneys: A principal of the entity that will ultimately be RACER's counter-party in a transaction - not an agent of the entity - must sign the Confidentiality Agreement on behalf of the entity. Agents engaged by the entity, such as brokers and attorneys, are covered under the Confidentiality Agreement entered into by the entity.
I hereby affirm that I am a principal of the entity that will ultimately be RACER'S counter-party in a transaction, not an agent of said counter-party.
WHEREAS, the Parties are willing to provide to each other access to information subject to the terms and conditions set forth below;
NOW THEREFORE, for and in consideration of the mutual obligations and benefits contained herein and other valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties hereby agree as follows:
1. The term "Confidential Information", as used herein, is defined as all of the following to the extent it is provided, prepared, created, delivered, obtained and/or issued, whether in writing, visually or orally, by or for the benefit of, either Party to the other: information, documentation, studies, reports, assessments, appraisals, recommendations, conclusions, results, findings, analysis, surveys, maps, notices and other materials, together with any information, terms and conditions contained or disclosed therein or obtained in connection therewith, and any analysis, overviews, digests and other summaries thereof.
2. Except as otherwise expressly agreed elsewhere herein, the Parties agree that all Confidential Information disclosed hereunder: (i) shall be treated as confidential, safeguarded and used by it solely for the purpose for which it is disclosed; (ii) shall remain the property of the providing Party or its client; (iii) shall not be used by the receiving Party for its own purpose except in connection with a potential agreement with the providing Party or its client; and (iv) shall not be distributed, disclosed, or disseminated in whole or in part, to anyone other than employees, legal advisors and retained consultants of the Company or its affiliates who have a need to know such Confidential Information and who agree to abide by the terms of this Agreement, unless and until such Confidential Information:
(a) is generally available to the public, other than as a result of breach of this Agreement;
(b) is already in its possession or the possession of its employees without restriction and prior to any disclosure hereunder;
(c) is or has been lawfully disclosed to it by a third party, not employed, retained or engaged by or otherwise affiliated with the receiving Party, who is free lawfully to disclose the same;
(d) is independently developed by the receiving Party, without the direct or indirect use of any Confidential Information; or
(e) is required to be disclosed in a judicial or administrative proceeding or otherwise required to be disclosed by law; however, in the case of this exception, the receiving Party must: (i) give the providing Party as much prior written notice as reasonably practicable of the information demand or request so the providing Party may seek such protective orders or other protection as the providing Party, in its sole discretion and at its sole expense, may elect to prepare; and (ii) reasonably cooperate with the providing Party in protecting against disclosure of the Confidential Information. If, failing the entry of a protective order or other protective measures, the receiving Party is compelled to make such disclosure, the receiving Party shall disclose only those portions of the Confidential Information as are required to be disclosed by applicable laws, and shall exercise all commercially reasonable efforts to obtain assurances that confidential treatment will be accorded to the Confidential Information so disclosed.
3. Each Party warrants that it shall apply reasonable safeguards against the unauthorized disclosure of Confidential Information, and agrees that it shall protect the Confidential Information received under this Agreement in the same manner and to the same degree that it protects its own Confidential Information and, in any event, with not less than reasonably prudent care.
4. The obligations contained in this Agreement shall remain in full force and effect for three years after the sooner of the following occurrences: (a) the conclusion of discussions between the Parties pertaining to the Purchase, (b) joint termination of this Agreement and (c) a termination of this Agreement by RACER under Section 9 hereof.
5. Furthermore, and notwithstanding anything to the contrary set forth herein, neither Party shall, without the prior written consent of the other Party: (a) release or cause to be released any press notices or publicity (oral or written) or advertising promotion relating to, or publicly announce or cause to be publicly announced, the transactions contemplated herein; or (b) prepare or provide materials or other information with respect to the Purchase (included but not limited to, any Confidential Information) to the media, or for media distribution, whether print, television, radio, internet, phone or other form of communication, except to the extent required by applicable law and handled in accordance with this Agreement.
6. Furthermore, and again notwithstanding anything to the contrary set forth herein, RACER shall be permitted to disclose the Company's Confidential Information (with the exception of any and all pricing information) to state, county, municipal and other local governmental and quasi-governmental officials and authorities in the jurisdictions where the Property is located, so long as, and on the condition that: (a) such disclosure is in connection with soliciting the views of the local communities and stakeholders, and (b) RACER requests that such officials and authorities not disclose such Confidential Information to third-parties in the absence of a Freedom of Information Act request or other legal obligation to disclose in accordance with Section 2(e) above or otherwise.
7. All Confidential Information provided by or on behalf of RACER shall be for informational purposes only, and may not be relied on by the Company. Conversely, any Confidential Information provided by the Company is intended to, and may, be relied on by RACER in assessing whether the Company satisfies the requisite criteria for the Purchase.
8. All Confidential Information shall be deemed subject to any and all privileges available at law or in equity with respect thereto, including attorney/client privilege, unless and until expressly waived by the Parties thereto.
9. The Parties hereby acknowledge that RACER is required, among other things, to sell or lease the Property with the objective that it be put to productive or beneficial use. In making such determination, RACER must consider the six Sales Criteria set forth on its website (https://www.racertrust.org/redevelopment-mission/sales-criteria) when evaluating an offer for the sale of "Trust Properties", including the Property. Accordingly, any violation of this Agreement by the Company shall: (a) be deemed to demonstrate bad faith by the Company, which may adversely affect or impair the Company's ability to satisfy such Sales Criteria, specifically including the Sixth Criterion regarding "the reputation and credibility of the prospective buyer"; and (b) entitle RACER to terminate this Agreement, upon prior reasonable notice to the Company.
10. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan. It may be signed in counterparts, each of which will be deemed a valid original and part of the same document. It supersedes all prior agreements, if any, between the Parties regarding Confidential Information disclosed to each other for the purposes described herein.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates set forth below, the latter of which shall also constitute the effective date of this Agreement.
Title of Signatory:
Email Address:
Date of Signing:

Empowering America's Auto Communities

RACER Confidentiality Agreement

RACER Confidentiality Agreement

Instructions

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