CONFIDENTIALITY AGREEMENT

            This Confidentiality Agreement (“Agreement”) is entered into by and among Auction.com, LLC (“Auction.com”), the owner of the confidential information referenced herein (“Owner”) and the party executing this Agreement (“Bidder”), and is effective as of the date executed and accepted by Bidder.

            WHEREAS, Auction.com provides marketing and auction services to Owners of commercial properties (each being an “Asset”), and in connection therewith makes available to prospective bidders certain Confidential Information (as defined hereinafter) related to the Asset; and

WHEREAS, Bidder desires to gain access to the Confidential Information and Auction.com and Owner are willing to provide access to Bidder following Bidder’s agreement to the terms hereof.

1.         For purposes of this Agreement, “Confidential Information” shall mean any and all information provided to Bidder in connection with the Asset, including, but not limited to, Asset information, tenant information, leasing information, financial information, and trade secrets.

            2.         The Confidential Information is proprietary, secret, and confidential and is only being disclosed to Bidder in conjunction with Bidder’s interest in purchasing an Asset and for no other reason.  Bidder agrees that the Confidential Information shall be utilized only in connection with the Bidder’s investigation and review of the Asset to evaluate the feasibility of purchasing the Asset.  The Confidential Information may not be relied on by the Bidder or any outside party for any purpose, including, but not limited to, the securing of financing necessary to purchase the Asset.

3.         Bidder shall review and maintain the Confidential Information in accordance with the following terms and conditions.

            (a)        Bidder agrees to treat all Confidential Information as confidential and not to disclose the same to any third party without the prior written consent of Auction.com and Owner other than to Bidder’s (i) employees, directors, members or managers (on a need to know basis), or (ii) attorneys, accountants, financial advisors and other consultants (collectively (i) and (ii) being, the “Representatives”).  Bidder shall advise the Representatives of their obligations under this Agreement prior to disclosing any of the Confidential Information to the Representatives.

(b)        Should Bidder or any of the Representatives breach the terms of this Agreement, then Bidder and the Representatives shall be jointly and severally liable for such breach.

(c)        All of the Confidential Information shall be kept and maintained in a safe and secure place with adequate safeguards to insure that unauthorized persons do not have access to the Confidential Information.

(d)        Any oral discussions between Auction.com and Bidder or its Representatives related to the Assets or the Confidential Information shall be kept secret and confidential and are deemed to be Confidential Information.

(e)        Upon the request of Auction.com or Owner, or after the termination of this Agreement, Bidder shall promptly return or destroy all of the Confidential Information including all work product of Bidder containing Confidential Information to Auction.com or Owner. Bidder shall certify that all Confidential Information and copies or extracts thereof have been returned or destroyed.

(f)        Bidder agrees to immediately notify Owner in writing of any misuse or misappropriation of the Confidential Information or violation of this Agreement that may come to its attention.

4.         Notwithstanding anything to the contrary herein, Bidder shall have no obligation to preserve the confidentiality of any information that:

(a)        Was previously known to Bidder free of any obligation to keep it confidential as shown by Bidder's written records, so long as the Bidder did not receive such information directly or indirectly from Owner;

(b)        Is or becomes publicly available, by other than unauthorized disclosure;

(c)        Is independently developed by Bidder without knowledge of the Confidential Information as shown by Bidder's written records;

(d)        Is disclosed to third parties by Owner without restriction; or

(e)        Is lawfully received by Bidder from a third party whose disclosure would not violate any confidentiality or other legal obligation.

5.         Neither Bidder nor its Representatives shall contact, or attempt to contact, any Owner, tenant, borrower, guarantor or any other party related to the Asset other than Auction.com without the prior, written consent of Auction.com.

6.         No liability shall arise under this Agreement due to Bidder's disclosure of Confidential Information made pursuant to judicial or governmental order, provided Bidder notifies Auction.com and Owner as soon as possible and in any event prior to such disclosure and cooperates with Auction.com and Owner in the event that either of them elects to legally contest and avoid such disclosure.

7.         Bidder agrees that it does not acquire any title, ownership, or other intellectual property right or license in or to the Confidential Information under this Agreement.

8.         Bidder hereby represents and warrants to Auction.com and Owner that Bidder is a substantial, sophisticated purchaser having such knowledge and experience in financial and business matters, and in particular in matters relating to the purchase, sale, origination or ownership of commercial property, that Bidder is capable of evaluating the merits and risks of investment in the Asset and understands and is able to bear the economic risks of such a purchase (including a total loss of its investment and the risk that Bidder might be required to hold the Asset for an indefinite period of time).

9.         By entering into this Agreement, Bidder hereby acknowledges that Auction.com and/or Owner may perform a credit check or other investigation to verify the accuracy of any statement made by Bidder herein.

10.       The obligations of this Agreement with respect to the disclosure of Confidential Information shall survive for a period of one (1) year from the date of this Agreement.

11.       This Agreement may be terminated by Auction.com or Owner upon thirty (30) days prior written notice provided, however, that this Agreement may be terminated immediately and the return or destruction of all Confidential Information may be demanded by Auction.com or Owner upon written notice in the event that Bidder or its Representatives breach any term of this Agreement.

12.       In the event Bidder or its Representatives breach, or threaten to breach, any of the covenants expressed herein, the damage to Auction.com and Owner will be great and irreparable and difficult to quantify; therefore, Auction.com and/or Owner may apply to a court of competent jurisdiction for injunctive or other equitable relief to restrain such breach or threat of breach, without disentitling Auction.com or Owner from any other relief in either law or equity. 

13.       Bidder and its Representatives specifically release Auction.com and Owner from all claims, demands, causes of action, judgments, losses, damages, liabilities, costs and expense (including attorneys’ fee whether suit is instituted or not) whether known or unknown, liquidated or contingent (“Claims”), asserted against or incurred by Bidder or its Representatives by reason of the information contained in, or that should have been contained in, the Confidential Information.  The Bidder and its Representatives further agree that they will indemnify and hold harmless Auction.com and Owner from all Claims arising from the breach of this Agreement by Bidder or its Representative.

14.       This Agreement merges and supersedes all prior Agreements between the parties hereto, and shall be governed by, and construed in accordance with, the laws of the State of  California, excluding its principles of conflicts of laws. The parties hereto agree that the sole venue for any action related to this Agreement shall be in the Federal District Court for the Southern District of California and the parties hereby irrevocably submit to the jurisdiction and venue of said court.

15.       This Agreement shall not be assigned by any party hereto without the express prior written consent of the other parties.

16.       WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND DOCUMENTATION DISCLOSED HEREUNDER, AUCTION.COM AND OWNER DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY EXPRESS OR IMPLIED WARRANTY AS TO THE COMPLETENESS, CONTENT OR ACCURACY OF SUCH CONFIDENTIAL INFORMATION AND DOCUMENTATION. Auction.com and Owner accept no responsibility as a result of any expenses, losses, damages, or actions incurred or undertaken by Bidder or its Representatives as a result of the their receipt or use of any Confidential Information.

17.       The waiver by either party hereto of any breach of the terms and conditions hereof will not be considered a modification of any provision, nor shall such a waiver act to bar the enforcement of any subsequent breach.

            The parties hereto acknowledge that Bidder is executing this Agreement by accepting the terms hereof when Bidder hits the “ACCEPT” button as part of Bidder’s request to access the Confidential Information on Auction.com’s website located at www.auction.com.  Such form of acceptance by Bidder is binding and Bidder acknowledges it shall be binding and enforceable pursuant to Electronic Signatures in Global and National Commerce Act ("E-Sign Act"), Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act ("UETA") and applicable state laws.

RC01012011