Spark by Hilton - Hilton Head

CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT

THIS  CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT this  “Agreement”) is made as of the date this agreement is executed by and between ("Receiving Party") and HH Lemoyne VIII LLC (“Disclosing Party”).

WITNESSETH

WHEREAS, the Receiving Party isinterested in entering into discussions and evaluating a potential acquisitionof property located at 11 Lemoyne Ave, Hilton Head Island, 29928, (the “Property”) owned by Disclosing Party(the “Potential Transaction”);

WHEREAS, during the course ofsuch discussions and evaluation (the “Evaluation”),Disclosing Party may furnish the Receiving Party with information which iseither non-public, confidential or proprietary in nature; and

WHEREAS, Disclosing Party iswilling to disclose such information, subject to the terms and conditions setforth herein.  

NOW, THEREFORE, for good andvaluable consideration, the receipt and sufficiency of which is herebyacknowledged, the parties agree as follows:

1.            As used in this Agreement the following termsshall have the following meanings: (i) “ConfidentialInformation” means all information in whatever form or medium (including,without limitation, electronic information) furnished by the Disclosing Partyor any of its Representatives (as hereinafter defined) to the Receiving Partyor any of its Representatives in connection with the Evaluation and shall alsoinclude all notes, analyses, compilations or studies prepared by a party or itsRepresentatives that are derived exclusively from the Confidential Information.Confidential Information also includes all information furnished by or onbehalf of the Disclosing Party or any of its subsidiaries or affiliates to theReceiving Party or any of its Representatives on or after the date of thisAgreement concerning or related in any way to the Evaluation, including,without limitation, business and financial information, business plans,marketing plans, property appraisals, property or business acquisitionprospects, architectural drawings, franchise arrangements, leases, loandocuments, property management arrangements, utility information, guest,tenant, customer and supplier lists; and (ii) the term “Representatives” means,with respect to either party, its affiliates, and such party’s or itsaffiliates’ respective directors, officers, employees, managers, affiliates,controlled investment vehicles, partners, members, shareholders, agents,advisors and other representatives (including without limitation, attorneys,accountants, consultants, bankers and financial advisors), contractors,vendors, investors (including potential investors), lenders (includingpotential lenders), potential debt and/or equity providers, and potentialfranchisors to whom such party discloses Confidential Information. ConfidentialInformation shall also include the substance of any discussions or negotiationstaking place concerning the Evaluation, and any of the specific terms,conditions or other facts related to such discussions and negotiations.  

2.            The Receiving Party agrees that the ConfidentialInformation will be used solely for the Evaluation and for no other purpose.The Receiving Party further agrees that the Receiving Party shall, and shalldirect its Representatives to, retain such Confidential Information inconfidence in accordance with the terms hereof and shall not, without the priorwritten consent of the Disclosing Party, use, publish or otherwise disclose,either on its own behalf or on behalf of any third party, any ConfidentialInformation for any purpose whatsoever, except as required by law, permittedpursuant to this Agreement, or otherwise expressly provided for herein. TheReceiving Party shall exercise commercially reasonable efforts to limit andrestrict access to the Confidential Information to only those of itsRepresentatives who reasonably require access to such information for thepurpose of the Evaluation. The Receiving Party will advise each of itsRepresentatives to whom it provides access to any of the Confidential Informationunder the foregoing sentence of the confidential nature of the ConfidentialInformation and direct such Representatives to treat the ConfidentialInformation in a manner consistent with the obligations set forth in thisAgreement. The Receiving Party accepts responsibility and liability for anyconduct of its Representatives that would constitute a breach by suchrepresentative of the confidentiality and use terms of this Agreement if itwere a party hereto.  

3.            Notwithstanding anything to the contrary setforth herein, in the event the Receiving Party or any Representative thereof isrequired in connection with any judicial or administrative proceeding (orallyor in writing, by interrogatory, court order, subpoena, administrativeproceeding, civil investigatory demand, or any similar legal or regulatoryprocess), or otherwise pursuant to applicable law, rule (including stockexchange rules) or regulation, to disclose any of the Confidential Information,then in advance of such disclosure the Receiving Party shall provide theDisclosing Party with notice of such requirement as soon as reasonablypracticable, so long as such notice is not prohibited by applicable law. TheReceiving Party will, and will direct its Representative, in advance of anysuch disclosure if not prohibited by applicable law, to provide the DisclosingParty with a list of any such Confidential Information the Receiving Partyintends to disclose (and, if applicable, the text of the disclosure languageitself) and, at the sole cost of the Disclosing Party, exercise reasonableefforts to cooperate in a commercially reasonable manner with the DisclosingParty to the extent the Disclosing Party may seek to limit such disclosure,including, if requested, taking commercially reasonable steps (at no cost tothe Receiving Party, and only if legally permissible) to resist or avoid anysuch judicial or administrative proceeding referred to above. If, in theabsence of a protective order or the receipt of a waiver from the DisclosingParty after a request therefor is made by the Receiving Party (such request tobe made promptly to allow the Disclosing Party a reasonable amount of time torespond thereto), the Receiving Party or any of its Representatives is legallyrequired to disclose Confidential Information, the Receiving Party or suchRepresentative may disclose such information without liability hereunder; provided,however, that the Receiving Party (or its Representatives, asapplicable) agrees that it shall furnish only that portion of the DisclosingParty’s Confidential Information which it reasonably believes is legallyrequired to be disclosed and the Receiving Party agrees that it shall use itscommercially reasonable efforts to obtain assurances that confidentialtreatment will be accorded to such Confidential Information. Notwithstandingthe foregoing, the Receiving Party and the Receiving Party’s Representatives shallnot be required to provide notice or seek the consent of the Disclosing Partyto disclose the Confidential Information when a disclosure is made inconnection with a routine audit, examination, request for information orblanket documentation request from a regulatory or governmental agency that isnot directed at Disclosing Party or the Evaluation provided that the ReceivingParty and/or its Representatives will use commercially reasonable efforts toseek assurance that such Confidential Information shall remainconfidential.  

4.            This Agreement shall not apply to those portionsof the Confidential Information which: (i) are or have become generallyavailable to the public other than as a result of disclosure by the ReceivingParty or any of its Representatives in breach of this Agreement; (ii) wereknown to the Receiving Party or its Representatives on a non-confidential basisprior to their disclosure by the Disclosing Party or its Representatives,provided that such information is not known by the Receiving Party or itsRepresentatives, after reasonable due inquiry, to be subject to any legal orcontractual obligation of confidentiality owed to the Disclosing Party; (iii)become available to the Receiving Party or the Receiving Party’sRepresentatives on a non-confidential basis from a source other than theDisclosing Party or the Disclosing Party’s Representatives, provided that suchsource is not known by the Receiving Party or its Representatives, after reasonabledue inquiry, to be subject to any legal, contractual or fiduciary obligation tothe Disclosing Party; or (iv) are independently discovered, developed orarrived at by the Receiving Party or its Representatives without use of orreference to the Confidential Information or otherwise violating any of theReceiving Party’s obligations hereunder.  

5.            The Receiving Party understands and acknowledgesthat any disclosure or misappropriation of any of the Confidential Informationin violation of this Agreement may cause the Disclosing Party irreparable harm.Accordingly, the Receiving Party agrees that upon any breach of this Agreementby the Receiving Party or its Representatives, the Disclosing Party shall havethe right, in addition to any other remedies available in law or in equity, toapply to any court of competent jurisdiction to enjoin such breach and for suchother relief as the Disclosing Party shall deem appropriate. Notwithstandinganything to the contrary in this Agreement, in the event of litigation relatingto this Agreement, the prevailing party in a final non-appealable judgment by acourt of competent jurisdiction shall be entitled to reimbursement by thenon-prevailing party for the prevailing party’s reasonable out-of-pocket costsand expenses (including, without limitation, legal fees and expenses) actuallyincurred in connection with such litigation.

6.            All Confidential Information shall be and remainthe property of the Disclosing Party and no right or license is granted to theReceiving Party with respect to the Confidential Information or any otherintellectual property of the Disclosing Party or its affiliates. ReceivingParty shall, and shall direct its Representatives to, as soon as reasonablypracticable following the written request from the Disclosing Party, destroyany and all copies of any Confidential Information in such person’s possessionor control, shall destroy all copies of any records, notes and other written,printed or tangible materials prepared by or on behalf of the Receiving Partyor the representative pertaining to the Confidential Information, and, to theextent reasonably practicable, shall expunge all such Confidential Informationfrom any computer, word processor or other device containing such information,except as permitted herein. If requested by the Disclosing Party in writing, anauthorized representative of the Receiving Party shall confirm in writing(email being sufficient) to the Disclosing Party that all ConfidentialInformation has been so destroyed in compliance herewith. Notwithstanding theforegoing, the Receiving Party and its Representatives may retain copies of anyConfidential Information, including summaries, compilations or analyses thereofin a manner consistent with its or their usual and customary document retentionand compliance policies or to the extent required by applicable law, rule orregulation, or as stored in standard backup or archival systems, provided thatsuch Confidential Information is not used for any purpose other than compliancewith such law, rule or regulation or a bona fide internal policy. Regardless ofthe delivery or destruction of any Confidential Information required by thisparagraph, or any retention of any Confidential Information in complianceherewith, any and all duties and obligations existing under this Agreement withrespect to such Confidential Information shall remain in full force and effectfor the term hereof.  

7.            Except for contacts in the ordinary course ofbusiness unrelated to the Evaluation and/or any potential transaction, theReceiving Party agrees that it will not, and will direct its Representativesnot to, contact or communicate regarding the Evaluation and/or any potentialtransaction with any director, officer, manager or other employee of DisclosingParty or its Representatives (other than the “point of contact” representativeof the Disclosing Party identified to the Receiving Party) and/or with any tenant,subtenant or other occupant at any property related to the ConfidentialInformation and/or with any lender (or any loan participant of any such lender)of the Disclosing Party. Except with regard to the Receiving Party’sRepresentatives, the Receiving Party agrees that neither the Receiving Partynor any of the Receiving Party’s Representatives will disclose to any person (i)the fact that the Evaluation is taking place and/or that the Receiving Party isconsidering any transaction with respect to any property related to theConfidential Information or (ii) that the Receiving Party and/or itsRepresentatives have received the Confidential Information or that ConfidentialInformation has been made available to the Receiving Party. Notwithstandinganything herein to the contrary,nothing in this Section 7 shall prohibit Receiving Party from communicatingwith its Representatives and this Agreement shall not prevent the ReceivingParty or its Representatives from participating in the sale of any loan securedby the property to the extent such sale is initiated by or at the direction ofthe respective owner of such loan.    

8.            This Agreement and all obligations hereundershall remain in full force and effect for one (1) year from the datehereof.  

9.            This Agreement, and any and all claims relatingto or arising out of this Agreement or the breach thereof, whether sounding incontract, tort or otherwise, in each case, shall be construed under andgoverned by the laws of the State of South Carolina without reference toprinciples of conflict of laws or choice of laws. This Agreement constitutesthe entire agreement of the parties with respect to its subject matter and maynot be amended or modified, and no provision hereof may be waived, except by awritten instrument executed by each of the parties. For the avoidance of doubt,the terms of this Agreement shall supersede any “click-through” or anyadditional or different purported confidentiality requirements imposed by anyworkspace or data site accessed by the Receiving Party or its Representativesin connection with the Evaluation. Incase any provision of this Agreement shall be invalid, illegal orunenforceable, the validity, legality and enforceability of the remainingprovisions shall not in any way be affected or impaired thereby. No failure ordelay in exercising any right, power or privilege hereunder shall operate as awaiver thereof, nor shall any single or partial exercise thereof preclude anyother or further exercise thereof or the exercise of any other right, power orprivilege hereunder. This Agreement and the obligations hereunder shall bebinding upon and inure to the benefit of both parties and their respective successors,and permitted assigns and may not be assigned by either party except upon priorwritten consent of the other party.  

10.        Nothing in this Agreement shall impose anyobligation upon either party to consummate any transaction, to enter into anydiscussion or negotiations with respect thereto, or to take any other actionnot expressly agreed to herein. Neither party shall have any obligation to theother for any action such other party may take or refrain from taking based onor otherwise attributable to any information (whether or not constitutingConfidential Information) furnished to such other party hereunder. Nothingcontained herein shall obligate the Disclosing Party to make available anyConfidential Information and the Disclosing Party shall have the right toreject any and all proposals with regard to the Evaluation and to terminatediscussions, negotiations and/or access to Confidential Information at anytime. The Receiving Party’s review of the Confidential Information shall be atits sole cost and expense.  

11.        The Receiving Party acknowledges that neitherthe Disclosing Party nor any of Disclosing Party’s Representatives make anyrepresentation or warranty, express or implied, as to the accuracy orcompleteness of the Confidential Information. The Receiving Party agrees that,except as may be set forth in a definitive purchase and sale agreement withrespect to the Property, neither the Disclosing Party nor any of the DisclosingParty’s Representatives shall have any liability to the Receiving Party or anyof the Receiving Party’s Representatives relating to or resulting from the useof the Confidential Information or any errors therein or omissions therefrom.Only those representations and warranties which are made in a purchase and saleagreement, when, as and if executed and delivered, and subject to suchlimitations and restrictions as may be specified therein, will have any legaleffect.  

12.        Signatures to this Agreement transmitted byelectronic mail in “portable document format” (“.pdf”) form, or by any otherelectronic means (e.g., DocuSign) intended to preserve the originalgraphic and pictorial appearance of a document, shall have the same effect asphysical delivery of the paper document bearing the original signature.  

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IN WITNESS WHEREOF, the parties have caused this Agreement to beexecuted by a duly authorized officer as of the date first written above.  

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Disclosing Party:

HH Lemoyne VIII LLC

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Receiving Party:

Information of ("Receiving Party") inserted below: