Bellevue Portfolio LLC
745 Fifth Avenue • 25th Floor • New York, NY 10151

The Carmen | 9200 North Normandale Street, Fort Worth, TX 76116

The Celine | 9001 North Normandale Street, Fort Worth, TX 76116

Re:      Confidentiality Agreement

Ladies and Gentlemen:

Further to our discussions, this agreement (this “Agreement”) will confirm the agreement between Bellevue Portfolio LLC (together with its affiliates, the “Disclosing Party”) and [insert legal name of counterparty] (together with its affiliates, the “Receiving Party”) with respect to the disclosure of certain information pertaining to the assets listed on Exhibit A attached hereto  (the “Properties” and such transaction, the “Transaction”).

1.         Definitions.  As used in this Agreement, the following definitions shall apply:

“Confidential Information” means all information or data made available to the Receiving Party (whether furnished orally, in writing, electronically or through any other form or medium and regardless of whether it is specifically marked or identified as confidential) or any part thereof, concerning or relating to the Transaction or the Disclosing Party’s or any of its affiliates’ involvement therewith, including all analyses, forecasts, reports, studies, agreements and any other information that would reasonably be considered confidential (including Personal Information (as defined below)); provided that Confidential Information shall not include information that (a) is or becomes publicly known other than as a result of a disclosure by the Receiving Party or its Representatives (as defined below), (b) was known to the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party or its Representatives by the Disclosing Party or its Representatives, (c) is or becomes available to the Receiving Party on a non-confidential basis from a third party who is not bound by any obligation of confidentiality with respect to such information or (d) is independently developed by Receiving Party without use of or reference to the Confidential Information.

“Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular identified or identifiable individuals or household.

“Representatives” means, as to any person, such person’s affiliates and its and their respective directors, officers, employees, agents and advisors (including, without limitation, financial advisors, legal counsel and accountants).

2.              Non-Disclosure and Non-Use of Confidential Information.  The Receiving Party hereby agrees (a) to keep all Confidential Information confidential, (b) to use the Confidential Information solely for purposes of evaluating the Transaction (the “Purpose”) and (c) not to disclose any Confidential Information to any person other than those of its Representatives who need to know such Confidential Information solely for the Purpose.  Receiving Party shall not, and shall direct its Representatives not to, use, deploy, feed, input, connect publish and/or disseminate any Confidential Information in any generative artificial intelligence or large language systems or models if such Confidential Information is reasonably likely to be, or will be, used to train the machine learning or algorithm of such tools or improve the services related to such tools; provided, however, that this shall not restrict the use of enterprise-level licenses for large language models or artificial intelligence tools (such as ChatGPT Enterprise) that do not use input data to train or improve the underlying model and that have appropriate security and confidentiality safeguards in place.  The Receiving Party shall notify all Representatives who have access to the Confidential Information of the terms of this Agreement and require them to agree to be bound by the terms hereof, and will exercise all reasonable efforts to prohibit them from disclosing such information to third parties.  The Receiving Party shall be responsible for any breach of any provisions hereof by any of its Representatives as though such Representatives were the Receiving Party.  The Receiving Party shall not, and will cause its Representatives not to, disclose any Confidential Information to any party, including the fact that the Confidential Information has been made available to the Receiving Party, the fact that the Receiving Party has inspected any portion of the Confidential Information, the fact that discussions with respect to any potential transaction or relationship are taking place, or other facts with respect to such discussions, including the status thereof.  All Confidential Information shall remain the exclusive property of the Disclosing Party. Nothing in this Agreement shall be construed to (i) prohibit any person from reporting possible violations of applicable law or regulation to any governmental, administrative or other regulatory agency, body or commission, or making other disclosures that are protected under the whistleblower provisions of applicable law or regulation or (ii) require any such person to provide notification that it has made such reports or disclosures.

3.              Mandatory Disclosure.  The Receiving Party shall be permitted to disclose Confidential Information required to be disclosed by it by applicable law, regulation or judicial process in any relevant action, proceeding or arbitration to which the Receiving Party is a party.  In the event that the Receiving Party receives a request to disclose, or otherwise intends to disclose, any Confidential Information under such law, process or otherwise, the Receiving Party shall (a) promptly (but in any event prior to any disclosure) notify the Disclosing Party thereof, (b) consult with the Disclosing Party on the advisability of, and cooperate with the Disclosing Party in, taking steps to resist or narrow or prohibit such request, and (c) if disclosure is required, incorporate any reasonable comments of the Disclosing Party in any such disclosure and, prior to such disclosure, cooperate with the Disclosing Party in any attempt that the Disclosing Party may make to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information, and if in the absence of a protective order the Receiving Party or its Representatives are, in the opinion of its counsel, compelled to disclose the Confidential Information, the Receiving Party may disclose only such portion of the Confidential Information to the party compelling disclosure as is required by law, regulation or judicial process.

4.              Destruction or Return of Materials.  The Receiving Party agrees not to reproduce or copy any Confidential Information, except as reasonably required to accomplish the Purpose.  Upon the request of the Disclosing Party, the Receiving Party shall (and shall cause its Representatives to) at the election of the Disclosing Party promptly destroy (with such destruction certified by an officer of the Receiving Party) or return to the Disclosing Party all Confidential Information and any copies of documents, papers or other material that contain or are otherwise derived from Confidential Information; provided, however, that the Receiving Party and its Representatives may retain any Confidential Information that they are required to retain pursuant to their respective (a) record‑keeping requirements mandated by applicable law or regulation or (b) internal record maintenance policies and controls (except that Personal Information may not be retained pursuant to internal record maintenance policies and controls), so long as in each case the Receiving Party or its Representative continues to hold such Confidential Information in accordance with the terms of this Agreement notwithstanding any expiration of its term. To the extent required by applicable law, the Receiving Party shall use reasonable efforts to notify the Disclosing Party of, and assist the Disclosing Party in responding to, any complaints, communications or requests by subjects of Personal Information deemed Confidential Information under this agreement.

5.              No Representations.  The Receiving Party acknowledges that the Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information provided by it and agrees that neither the Disclosing Party nor any of its affiliates shall have any liability for any inaccuracies in or omissions from any such Confidential Information.  None of such parties shall have, and each expressly disclaims, any duty to update information that is disclosed.  Only those representations and warranties (if any) that may be made by the Disclosing Party in definitive documentation (if any) regarding the Transaction shall have any legal effect.

6.              Term.  The Receiving Party’s obligations under this Agreement with respect to any Confidential Information other than Personal Information shall terminate on the earlier to occur of (a) the second anniversary of the date hereof and (b) the date, if any, that the parties hereto or their affiliates execute and deliver a confidentiality agreement (or an agreement containing a confidentiality provision) that expressly supersedes this Agreement.

7.              Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any laws, rules or provisions that would cause the application of the laws of another jurisdiction, and any litigation arising out of or in connection in any way with this Agreement shall take place in a State or Federal court of competent jurisdiction in the State of New York, Borough of Manhattan.

8.              Remedies.  The Receiving Party acknowledges that damages may not be a suitable remedy for a breach by it under this Agreement.  Accordingly, in addition to all other remedies to which the Disclosing Party may be entitled, the Disclosing Party shall also be entitled to seek injunctive relief and any other form of equitable relief to enforce the provisions of this Agreement.  Each party hereto irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement.  It is the intention of the parties hereto that the restrictions contained in this Agreement be enforceable to the fullest extent permitted by applicable law.  Therefore, to the extent any court of competent jurisdiction shall determine that any portion of the foregoing restrictions is excessive, such provision shall not be entirely void, but rather shall be limited or revised only to the extent necessary to make it enforceable.  In the event of any dispute arising hereunder, the prevailing party of a final, non-appealable judgment of a court of competent jurisdiction shall be entitled to recover its actual and reasonable external attorneys’ fees from the non-prevailing party.

9.              Survival.  Section 4, Section 7, Section 8, Section 9 and Section 10 and Section 11 as well as any provisions of this Agreement that expressly are intended to survive its termination or expiration shall survive any expiration or termination of this Agreement to the extent necessary to give effect thereto.

10.           Miscellaneous.  This Agreement contains the entire agreement between the Disclosing Party and the Receiving Party concerning confidentiality of the Confidential Information.  No modification of this Agreement or waiver of the terms and conditions hereof shall be binding upon the Disclosing Party or the Receiving Party unless approved in writing by each of the Disclosing Party and Receiving Party.  This Agreement shall be binding upon and inure solely to the benefit of each party hereto and its successors, and nothing herein, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.  The Receiving Party may not assign or delegate any of its rights or obligations hereunder without the prior written consent of the Disclosing Party.  No failure or delay by the Disclosing Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.  This Agreement may be signed in counterparts, which together shall constitute one agreement.  Each party to this Agreement hereby represents and warrants in respect of itself that the execution of this Agreement by such party has been duly authorized and this Agreement shall constitute a legally binding obligation of such party.  No party hereto (or any of its affiliates) has any obligation to consummate any transaction contemplated or referenced herein.  This Agreement does not create a joint venture, partnership or other business relationship or entity of any kind, or an obligation to form any such relationship or entity.  Each party hereto will act as an independent contractor and not as an agent of the other party for any purpose, and neither will have the authority to bind the other by virtue of this Agreement.

11.           Non-Circumvention and Non-Contact.  Notwithstanding any expiration of the term of this Agreement, the Receiving Party hereby agrees to refrain from, directly or indirectly, approaching, contacting, or otherwise entering into any agreements, discussions, understandings or negotiations with any lender, servicer, special servicer, investor, partner, owner, joint venture partner, manager or any similar persons or other third parties (including any union representative) involved with, or in, or otherwise associated with, or relating to, the Property, or any of their respective affiliates, subsidiaries, directors, shareholders, management, advisors, agents and/or any other related third parties of such lender, servicer, special servicer, investor, partner, owner, joint venture partner, manager or other similar persons or other third parties in connection with any proposals related to the Transaction or an acquisition, joint venture, financing (debt or equity), strategic partnership or any type of investment or relationship involving, or in connection with, the Property without prior written consent of the Disclosing Party for a period of two years from the date hereof.  In furtherance of the foregoing, Receiving Party agrees it may not take any action or omission that is indirectly prohibited by the terms of this provision.  Without the prior written consent of representatives of the Disclosing Party  on behalf of the Disclosing Party, the Receiving Party may not contact any lender, partner, owner, union official or other persons associated with the Property and Receiving Party may only contact Fundamental regarding the Property and/or the Transaction.

 

[Signature Page Follows]