Request Due Diligence Access
Please fill out and submit the form below to request access to due diligence for this property. If you agree with the terms of the NDA, please check the "Approve NDA" box and submit. By submitting this form, you agree to the Terms and Conditions of the Confidentiality Agreement.
If you would like to modify the NDA, please download the Word version, make your changes, and attach the revised version to the form or email it to Chelsea@stream-cp.com.
Once we receive your NDA, we will contact you with login information.
THIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of _______________, 2019 by and between __________________________ (“Recipient”), KIOLBASSA PROVISION COMPANY, a Texas corporation (“KPC”), and Encino Realty, LLC, a Texas limited liability company (“Encino” and together with KPC, collectively, the “Company”). RECITALS
WHEREAS, the Company and Recipient desire to engage in discussions regarding a possible sale-leaseback of the real property (the “Property”) located at 1325 S. Brazos Street and 1545 South San Marcos, San Antonio, Texas (the “Purpose”), whereby the Company may disclose certain proprietary and confidential information to Recipient in connection therewith; and
WHEREAS, as a condition to the foregoing, the Company requires that Recipient agree to protect and preserve the confidential and proprietary nature of the Confidential Information (as defined below) by executing and delivering this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, the parties, intending to be legally bound, hereby agree as follows:
- Confidential Information. In this Agreement, “Confidential Information” means all documents, studies, reports, test results, brochures, offering materials, photographs, surveys, title reports and commitments, legal documents, financial information, computer output and other materials and information relating to Property or the Company or its business, and all analyses, compilations, forecasts, projections and other documents prepared based upon such materials and information, and all proposals made in connection with a potential sale-leaseback (including any proposals involving a price or rental rate for the Property), whether the same are in electronic, pictorial, written or other form.
- Confidentiality; Non-Disclosure. Recipient shall not use, without the prior written consent of the Company, any portion of the Confidential Information for any reason other than the Purpose. Recipient agrees that (i) it will hold the Confidential Information in the strictest confidence; (ii) it will exercise no less care with respect to the Confidential Information than the level of care exercised with respect to Recipient’s own confidential information; (iii) except as otherwise provided herein, it will not, without the Company’s prior written consent, copy or disclose to any third party any portion of the Confidential Information; (iv) it will immediately notify the Company of any unauthorized disclosure or use, and will cooperate with the Company to protect all proprietary rights in and ownership, of the Confidential Information; (v) it will restrict dissemination of the Confidential Information to only those representatives within or related to its organization who are directly involved with the Purpose and need to have access to such Confidential Information for the purposes provided hereunder, and who are bound by confidentiality obligations substantially similar to the terms set forth herein; (vi) all Confidential Information is and will at all times remain the sole and exclusive property of the Company; and (vii) it will not use the Confidential Information in any manner that may be prohibited by applicable federal or state privacy laws and regulations.
- Exceptions. The foregoing confidentiality provisions shall not prohibit or limit Recipient’s use, disclosure, reproduction or dissemination of any Confidential Information to the extent it (i) is or becomes public domain information or material through no fault or breach on the part of Recipient; (ii) as demonstrated by the written records of Recipient, was already lawfully known (without restriction on disclosure) to Recipient prior to the information being disclosed to Recipient by the Company or any representative of the Company; (iii) has been or is hereafter rightfully furnished to Recipient without restriction on disclosure by a third party lawfully in possession thereof; (iv) has been independently developed by or for Recipient without reference to any Confidential Information; or (v) is required to be disclosed, but only to the extent required, by a court order, or pursuant to applicable law, regulation or self-regulatory organization rules, provided that Recipient notifies the Company so that the Company may have a reasonable opportunity to obtain a protective order or other form of protection against disclosure of such Confidential Information. For the avoidance of doubt, the exception set forth in item (v) in this Section 3 shall be an exception only to the prohibition against disclosure, not an exception to the prohibition against use. It shall be presumed that any Confidential Information in the possession of Recipient is not within any of the exceptions above, and the burden is on Recipient to prove otherwise by records and documentation.
- No Rights Granted. This Agreement conveys no rights by implication or otherwise in or to any Confidential Information. Recipient may not, directly or indirectly, use any Confidential Information except for the Purpose.
- Reproduction and Return of Confidential Information. All Confidential Information shall remain the property of the Company. Recipient agrees not to make copies of any Confidential Information except to the extent reasonably necessary to fulfill the Purpose, or unless approved in writing by the Company. Recipient agrees to return or destroy all materials, (in written, electronic or other form) containing or constituting Confidential Information still in the possession of Recipient, including any copies and extracts thereof, upon the Company’s written request. Return of Confidential Information by Recipient does not relieve Recipient from its responsibility to maintain the confidentiality of any Confidential Information it had previously received.
- Responsibility for Others. Recipient is responsible for any breach of this Agreement by itself or, as applicable, its affiliates, agents or consultants, or any other third party that is provided or provided access to, whether directly or indirectly, intentionally or unintentionally, any Confidential Information.
- No Obligations. Nothing herein contained will obligate the Company to disclose any Confidential Information to Recipient.
- Notification. Recipient will immediately notify the Company if it becomes aware of the unauthorized disclosure or use of any Confidential Information.
- Notices. All notices, authorizations, demands or requests required or permitted to be delivered to any party in connection with this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered, if sent by a nationally-recognized overnight courier with charges prepaid, if sent by registered or certified mail, postage prepaid, return receipt requested, addressed to the party at its respective address set forth on the signature page hereto, or to such other address as the party to whom the notice is to be given may have furnished from time to time to the other party in writing in accordance with the provisions of this Section 9.
- Indemnification. Recipient hereby indemnifies and holds the Company harmless from and against any and all losses, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred by the Company arising from or in connection with a breach of this Agreement by Recipient. Recipient shall promptly notify the Company upon learning of any claims or actions that may reasonably give rise to a demand under this provision.
- Specific Performance. Recipient hereby acknowledges and agrees that the Company would be irreparably damaged in the event that any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached, and that an award of monetary damages would be inadequate, and the Company would have no adequate remedy at law. Accordingly, Recipient agrees that the Company shall be entitled to enforce its rights and Recipient’s obligations hereunder by action for specific performance, injunctive and/or other equitable relief, in addition to any other remedy to which the Company may be entitled hereunder, at law or in equity. Each party hereby waives any requirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining any relief provided by this Section 11.
- Entire Agreement; Amendments; Waivers. This Agreement constitutes the entire understanding between the parties and supersedes all other prior understandings, whether written or oral, with respect to the subject matter hereof. This Agreement shall not be amended, modified or any of the terms hereof otherwise changed except by an instrument in writing, signed by Company and Recipient. No delay on the part of any party in exercising any right, power or privilege granted hereunder shall operate as a waiver of any kind.
- Assignment. Neither this Agreement, nor any of the rights or obligations hereunder, may be assigned by either party without the prior written consent of the other party hereto.
- Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to principles of conflicts of laws. Each party hereby agrees that any action or proceeding arising out of or in connection with this Agreement shall be brought in the federal or state district courts located in Bexar County, Texas, and the parties hereby waive any defense of inconvenient forum. The parties further agree that process may be served upon each of them by certified or registered mail, postage prepaid, return receipt requested, directed to the representative party at its principal address, and the parties waive any defense of insufficiency of service with respect to process so served.
- Attorneys’ Fees. If any legal proceeding is necessary to enforce or interpret the terms of this Agreement, or to recover damages for breach therefore, the prevailing party shall be entitled to reasonable attorneys’ fees, as well as costs and disbursements, in addition to any other relief to which it may be entitled.
- Independent Relationship. This Agreement shall not be construed as a teaming agreement, joint venture, partnership, agency or other business relationship. Nothing contained in this Agreement or in any discussions regarding the Purpose will (i) be deemed a commitment to engage in any business relationship, contract or future dealing between the parties; or (ii) limit either party’s right to conduct similar discussions or perform similar work for third parties.
- Construction. Each party has been given the opportunity to consult legal counsel to the extent each party has deemed necessary with respect to such party’s rights and obligations hereunder. Accordingly, any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the drafting party it is not applicable and is waived.
- Severability. If any provision or any portion of any provision of this Agreement shall be held invalid or unenforceable, the remaining portion of such provision and the remaining provisions of this Agreement shall not be affected thereby.
- Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original, and all such counterparts will be deemed to be one and the same instrument. A telecopy, facsimile or electronic scan of a signed counterpart of this Agreement shall be sufficient to bind the party or parties whose signature(s) appear thereon.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date first set forth above.
KIOLBASSA PROVISION COMPANY
1325 S. Brazos Street
San Antonio, TX 78207
Attn: Bill Wagner
ENCINO REALTY, LLC
Mailing Address: Download NDA in Word format
c/o Kiolbassa Provision Company
1325 S. Brazos Street
San Antonio, TX 78207
Attn: Bill Wagner