Non-Disclosure Agreement

Non-Disclosure Agreement

This Agreement is made as of the date last signed below between Alpha Everest Capital, a Delaware limited liability company with offices at 1 Bridge Plaza, Suite 900, Fort Lee, New Jersey 07024 (“Alpha Everest Capital”), and the undersigned Recipient identified below, whether an individual or entity (the “Recipient”). For purposes of this Agreement, “Recipient” shall include Investor and any of its affiliates, controlled entities, representatives, partners, members, managers, shareholders, employees, advisors, or any person or entity acting in concert with Recipient.

WHEREAS, Recipient and Alpha Everest Capital mutually desire to engage in discussions for the purpose of exploring business opportunities with each other (the “Purpose”); and,

WHEREAS, Recipient and Alpha Everest Capital or their respective Representatives (as defined in Clause 1 below), in the course of their discussions, may disclose to one another "Confidential Information" as defined in Clause 2 below while not wishing to convey any interest or copyright therein to the other side or make such Confidential Information public or common knowledge;

NOW, THEREFORE, in consideration of each party’s assent to this Agreement, the joint nature of the anticipated disclosures and the parties’ agreement to engage in business discussions, Recipient and Alpha Everest Capital hereby agree as follows:

1. Definitions

"Affiliate" shall mean any third party directly or indirectly controlling or controlled by or under direct or indirect common control thereof. For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such third party, whether through the ownership of voting securities or by contract or otherwise.

"Agent" shall include without limitation any consultant or adviser to a party, whether or not, as between such party and its consultant or adviser, such consultant or adviser is classified as the party’s agent.

"Representatives" in relation to a party shall include that party’s Affiliates and the respective directors, officers, employees and agents of that party and each of its Affiliates.

2. Confidential Information

For purposes of this Agreement, “Confidential Information” shall mean any non-public information disclosed by or on behalf of Alpha Everest Capital, whether orally, visually, electronically, or in writing, that relates to the Purpose, including but not limited to:

(a) investment materials, deal structures, financial models, underwriting assumptions, pricing, projections, capital stack information, loan terms, equity structures, strategies, and transaction terms;

(b) information regarding investors, lenders, brokers, sellers, developers, tenants, operators, joint venture partners, vendors, service providers, and other business relationships;

(c) proprietary methods, processes, business strategies, analytics, know-how, trade secrets, and operational information;

(d) the existence of discussions between the Parties, the fact that negotiations are taking place, and the status of such discussions.

Confidential Information shall be protected regardless of whether it is marked “confidential,” and regardless of the form in which it is disclosed. All notes, analyses, summaries, models, or derivative materials prepared by Recipient that contain or reflect Confidential Information shall also be deemed Confidential Information.

3. Non-Disclosure

Recipient shall:

(i) hold all Confidential Information in strict confidence;

(ii) use Confidential Information solely for evaluating the Purpose;

(iii) not disclose Confidential Information to any third party except to Representatives who have a strict need to know and who are bound by confidentiality obligations no less protective than those contained herein.

Recipient shall be fully responsible and liable for any breach of this Agreement by its Representatives, whether or not such breach results from negligence. Recipient shall protect Confidential Information using no less than commercially reasonable care, and in no event less than the standard it applies to its own most sensitive proprietary information.

4. Permitted Disclosure

The recipient party may disclose Confidential Information:

(a) to its Representatives on a need-to-know basis and only to the extent necessary for the Purpose provided that in such case it shall inform such persons of this Agreement and the confidential nature of the information and, if requested by the disclosing party, shall procure that each such person enter into a written agreement with the disclosing party on the terms of this Agreement; provided further that the recipient party shall be fully liable for any breach of this Agreement by any such Representative; or

(b) in response to and in accordance with a valid order of a court or authorised agency of government or stock or investment exchange regulatory body which has jurisdiction over the recipient party, provided that at least ten (10) days’ notice (or, if not legally possible, as much notice as possible) first be given to the disclosing party to enable it to approve the content of such disclosure.

5. Similar Products and Services

Recipient acknowledges that Alpha Everest Capital and its Representatives develop themselves and evaluate many opportunities whether developed by Alpha Everest Capital or third parties. Some of these opportunities may involve products or services similar to Recipient’s actual or proposed products and/or services. Recipient agrees that nothing in this Agreement nor the receipt of Recipient’s Confidential Information by Alpha Everest Capital or any of its Representatives will limit or restrict Alpha Everest Capital’s or its Representatives’ ability or right to freely pursue all such other opportunities and to enter into any business relationship including in respect of opportunities which may be similar with the Purpose, subject to the confidentiality obligations in this Agreement.

6. Return of Confidential Information

Upon written request by Alpha Everest Capital, Recipient shall immediately return or permanently destroy all Confidential Information, including all copies and derivative materials, and certify such destruction in writing within five (5) business days. Recipient shall not retain archival, backup, or other copies except to the extent required by applicable law, and any such retained materials shall remain subject to this Agreement indefinitely.

7. Non-Protected Information

For purposes of this Agreement, "Non-Protected Information" shall mean information that the recipient party can establish:

(a) is or becomes known to it or any of its Representatives from any source having no obligation not to disclose it;

(b) is or becomes available to the public other than by breach of this Agreement by the recipient party; or

(c) is independently developed by the recipient party without the use of or reference to Confidential Information.

8. Breach

The recipient party shall:

(a) be liable for any unauthorized disclosure or misuse of Confidential Information, regardless of fault;

(b) acknowledge that monetary damages alone may be insufficient and that Alpha Everest Capital shall be entitled to injunctive relief, specific performance, and any other equitable remedies without the necessity of posting bond.

9. No Conveyance or Licence

Except for limited use permitted hereunder, nothing in this Agreement shall be construed to convey to the recipient of Confidential Information or its Representatives any right, title or interest or copyright in any Confidential Information, or any license to use, sell, exploit, copy or further develop any such Confidential Information. This Agreement does not in any way bind the parties or their Representatives to enter into a business relationship of any nature.

10. No Representation

Unless otherwise agreed to in writing, the disclosing party and its Representatives accept no responsibility for and make no representation or warranty, express or implied, with respect to the truth, accuracy, completeness or reasonableness of the Confidential Information and shall not be liable for any direct, indirect, incidental, consequential, or special damages in respect of the Confidential Information or its use.

11. Knowledge, Skills and Ideas

Both parties shall be free to use their general knowledge, skills and experience, and any ideas, concepts, know-how, that are acquired or used in the course of the Purpose other than to the extent it is Confidential Information.

12. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles. The Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in New York County, New York, for the resolution of any dispute arising out of or relating to this Agreement.

13. Severability

If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from this Agreement which shall otherwise remain in full force and effect.

14. Remedies

The parties agree that if there is a breach of this Agreement by either party, the other may seek any remedy in law and/or equity including, but not limited to, appropriate injunctive relief or specific performance as may be granted by a court of competent jurisdiction.

15. Attorney’s Fees

In the event any suit or other action is commenced to construe or enforce any provision of this Agreement, the prevailing party shall be paid reasonable attorney’s fees and court costs in addition to all other amounts.

16. Entire Agreement

This Agreement constitutes the entire agreement between the parties with respect to the subject matters addressed herein. This Agreement may not be amended or modified except by a writing signed by both parties.

17. Successors

This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns and transferees.

18. Notices

Any notice or other document to be served under this Agreement may be delivered in person, sent by prepaid registered or certified mail (return receipt requested), or sent by email (with read receipt or delivery confirmation) to the party to be served at the address set forth in the executed signature block below, or at any other address or addressee as it may have notified to the other parties in accordance with this Clause with at least 15 days’ prior written notice.

19. Assignment

Alpha Everest Capital may assign this Agreement to any of its affiliates without the consent of Recipient. Recipient may not assign this Agreement without the prior written consent of Alpha Everest Capital.

20. Non-Circumvention and Non-Solicitation

Recipient agrees that for a period of thirty-six (36) months from the date of disclosure, Recipient shall not, directly or indirectly, without the prior written consent of Alpha Everest Capital:

(a) contact, negotiate with, transact with, solicit, invest with, lend to, borrow from, or otherwise engage in any business relationship with any investor, lender, seller, broker, developer, tenant, operator, joint venture partner, advisor, or other contact introduced, identified, or disclosed by Alpha Everest Capital;

(b) structure, replicate, or pursue any transaction substantially similar to the opportunity introduced by Alpha Everest Capital;

(c) circumvent, bypass, or attempt to bypass Alpha Everest Capital in connection with any transaction related to the Purpose;

(d) use Confidential Information to compete against Alpha Everest Capital in any transaction relating to the Purpose.

Recipient agrees that this provision is reasonable in scope and duration and necessary to protect Alpha Everest Capital’s legitimate business interests. Any violation of this Section shall entitle Alpha Everest Capital to immediate injunctive relief in addition to all available monetary damages.

21. No Partnership or Fiduciary Duty

Nothing in this Agreement creates any partnership, joint venture, fiduciary relationship, or agency relationship between the Parties unless set forth in a definitive written agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date last set forth below.