Confidentiality Agreement

CB Richard Ellis, Inc. (“Broker”) has been retained by Winchester REO, LLC, a North Carolina limited liability company (“Owner”) in connection with a possible sale of Winchester Country Club in Placer County, California (the “Property”).  Broker, on behalf of Owner, has agreed to make available to the undersigned (the “Prospect”) certain “Confidential Information” (hereinafter defined) provided Prospect agrees to all of the terms and provisions of this agreement (the “Agreement”).  Prospect desires to receive Confidential Information in connection with the Property, and in consideration of same (the receipt and sufficiency of which is acknowledged by Prospect), Prospect hereby agrees with Broker and Owner as follows:

1. “Confidential Information” is all non-public or proprietary information concerning the Property disclosed by or through Broker to Prospect, including, without limitation, development, sales or marketing plans, business strategies or plans, accounting or financial information, processes, systems, data, customer information, documents, studies and other materials relating to the Property, both written and oral, in whatever medium (tangible or intangible); provided, however, that Confidential Information shall not include information or materials which (i) become available to the public other than as a result of a disclosure by Prospect or its agents or representatives, (ii) is already in Prospect’s possession prior to the date of this Agreement, (iii) is independently created by Prospect from information or material not otherwise Confidential Information, or (iv) was or becomes available to Prospect on a non-confidential basis from a source, other than Broker, Owner or their respective representatives, provided such source is not bound by any confidentiality obligation or agreement with Broker, Owner or their representatives.

2. All Confidential Information will be used by Prospect for the sole purpose of evaluating a possible purchase of the Property and will not be used for any other purpose.  Except as may be otherwise required by applicable law, all Confidential Information will be kept confidential by Prospect and not disclosed to any other parties; provided, however, that such information may be disclosed to Prospect’s affiliates and their respective directors, officers, employees, professional advisors, representatives, reinsurers, retrocessionaires and rating agencies in connection with the evaluation of a possible purchase of the Property (it being agreed that such persons or entities shall be informed in writing by Prospect of the terms of this Agreement and, with respect to Prospect’s employees and Prospect’s affiliates, shall agree to abide by the terms hereof).  Prospect shall be responsible for any breach of this Agreement by its directors, officers, employees or representatives.  Broker is not authorized to accept any confidential or proprietary information or materials or any unique or protected ideas from Prospect; accordingly, Prospect will not submit any of such information, materials or ideas to either Broker or to Owner, and if Prospect does submit any information, materials or ideas to Broker or to Owner, none of it will be deemed as confidential, proprietary or protected, and Owner may freely use any of such information, materials or ideas without compensation to anyone.

3. Prospect will not contact or attempt to communicate with any media representatives, governmental employees, members of Winchester Country Club or any of their representatives or agents, or with any of the Owner’s employees, agents, contractors, tenants or prospective tenants with respect to the Property without the prior written consent of Owner, such consent to be withheld, conditioned or delayed by Owner in Owner’s sole discretion. 

4. In the event that Prospect is requested or required (by subpoena or other legal process) to disclose any information supplied to Prospect or its representatives in the course of Prospect’s dealings with Broker or Owner or their respective representatives, Prospect will provide Broker with prompt notice of such request so that Broker or Owner may seek an appropriate protective order and/or waive (but only by a writing signed by Broker or Owner) Prospect’s compliance with the provisions of this Agreement.  In the event that no transaction is effected between Prospect and Owner, Prospect will promptly return to Broker all Confidential Information delivered to Prospect without retaining any copy thereof.

5. Neither Broker, Owner, nor any of their respective representatives or advisors have made or make any representation or warranty as to the accuracy or completeness of the Confidential Information; and neither Broker, Owner, nor their respective representatives or advisors shall have any duty or liability to Prospect or any of its representatives or advisors resulting from the Confidential Information or Prospect’s use thereof.

6. Prospect shall indemnify and save harmless Broker and Owner, along with their respective officers, directors, employees, agents and representatives, from and against any claim, demand, proceeding, judgment, loss, damage, liability or expenses, including reasonable attorney's fees and expenses, arising out of any claim or claims by any broker, finder, representative or other person for commissions, fees or other compensation relating to any proposed transaction involving the Property if and to the extent such claims are based in whole or in part on alleged dealings or agreements with Prospect or any of its representatives and such broker, finder, representative or other person.  The terms of this paragraph shall survive the expiration or termination of this Agreement.

7. Broker is operating on behalf of Owner as Exclusive Agent in connection with the marketing of the Property .  Should the Prospect elect to have representation by a Co-broker, Prospect hereby agrees that any fees earned by or owed to such Co-broker in connection with this transaction will be paid by the undersigned Prospect.  Prospect and Co-broker agree to indemnify and hold harmless Broker and Owner, their respective affiliates, agents, successors and assigns, employees, officers and directors against and from any loss, liability or expense, including reasonable attorney’s fees arising out of any claim or claims by any Co-broker, finder or similar agent for commissions, fees or other compensation except as agreed herein, for bringing about any sale of this Property to Prospect.

8. Prospect shall keep confidential the fact that negotiations or discussions are taking place regarding the Property and the terms and conditions of such negotiations and discussions.  In addition, Prospect acknowledges that Broker has no power or authority in any way to bind Owner with respect to any sale or other transaction involving Owner.  Neither the submission of the Confidential Information to Prospect nor any discussions, negotiations or other communications (whether written or oral) shall constitute any offer with respect to the Property.  Owner shall in no way be bound or be deemed to have agreed to any such sale or transaction or be under any legal obligation to enter into a sale or transaction until such time (if any) as Owner has executed and delivered a final, written, executed contract of sale involving the Property under terms and conditions that are acceptable to Owner in its sole discretion.  Accordingly, until such an agreement might be so executed and delivered (if ever), any such negotiations, discussions or communications (including the execution of any letter of intent respecting the Property) shall be non-binding, and either party shall have the absolute right to withdraw from such negotiations, discussions or communications without any liability whatsoever to the other party (except with respect to the terms of this Agreement).

9. Without prejudice to their rights and remedies available hereunder or at law or in equity, in the event of a breach of this Agreement, Owner or Broker shall be entitled to all legal relief and remedies as well as all equitable relief by way of temporary order, injunction or otherwise if Prospect or its representatives breach, or threaten to breach, any of the provisions of this Agreement, and no failure or delay by Broker or Owner 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 constitutes the entire agreement among Prospect, Broker and Owner (Owner being an intended beneficiary of this Agreement) relating to the matters set forth herein and supersedes any and all prior or contemporaneous understandings among the parties hereto with respect to the subject matter hereof.  This Agreement shall not be amended, modified, or supplemented except in writing executed by Owner, Broker and Prospect and shall be binding upon Owner, Broker and Prospect and their respective successors and assigns.  This Agreement shall be governed by and interpreted and enforced in accordance with California law and any action or proceeding brought by Owner, Broker or Prospect to interpret or enforce this Agreement or any action or proceeding otherwise arising under this Agreement shall be brought in an appropriate state or federal court in Placer County, California and tried without a jury (jury trial being hereby waived).  In the event any litigation is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its court costs and reasonable attorneys’ fees incurred in connection with such action, including those incurred in connection with pursuit of any appeal or in enforcing any judgment rendered in such action.  Prospect’s undersigned officer, partner or representative represents and warrants to Owner and Broker that he or she is duly authorized and empowered to bind Prospect to the terms and provisions of this Agreement.

10. The term of this Agreement shall be effective until the earlier of (i) the date which is one (1) year after the date this Agreement is signed below, or (ii) the closing of the purchase and sale of the Property and public recordation of the deed.