Quantum Village – Spencer Friedman – firstname.lastname@example.org
/ April 24, 2019
This Confidentiality and Conditions of Offering Agreement (the “Agreement”) will confirm the mutual understandings of Potential Investor,[ ] (“One Investment Group”), and Owner in connection with Potential Investor’s review of certain confidential information, including but not limited to, an offering memorandum, documents, data, financial statements, reports, forecasts, projections, surveys, diagrams, records, engineering reports and such other documents or conversations concerning the Property as defined in the Preamble above (the “Offering Materials”). Please be advised that Owner and One Investment Group may make the Offering Materials available in written, electronic or verbal form to the Potential Investor following One Investment Group’s receipt of this Agreement executed by Potential Investor. The terms of this Agreement are as follows:
- Ownership, Use and Return of Offering Materials – All of the Offering Materials relating to the Property which may be furnished to the Potential Investor by the Owner or One Investment Group shall continue to be the Property of the Owner and One Investment Group. The Offering Materials will be used by the Potential Investor and the Related Parties (as hereinafter defined below) solely for the purpose of evaluating the possible acquisition, capitalization or participation in the Property and not for any other purpose unrelated to the possible acquisition, capitalization or participation in the Property. The Offering Materials may not be copied or duplicated without the Owner’s or One Investment Group’s prior written consent and must be returned to One Investment Group immediately upon request (or with One Investment Group’s permission, destroyed by the Potential Investor and/or the Related Parties with a letter to One Investment Group stating that all Offering Materials have been destroyed) or when the Potential Investor declines to make an offer for the Property or terminates discussion or negotiations with respect to the Property.
- Confidentiality and Disclosure of Offering Materials by the Potential Investor – The Potential Investor acknowledges that the Offering Materials are considered confidential and proprietary information of the Owner and One Investment Group and will not make any Offering Materials available, or disclose any of the contents thereof, to any person without Owner’s and One Investment Group’s prior written consent; provided however, that the Offering Materials may be disclosed to the Potential Investor’s partners, employees, legal counsel, advisors, institutional lenders and other capital source(s) (“Related Parties”) as required for an evaluation of the Property, Offering Materials and the terms of this Agreement (including, but not limited to, the provisions of this Section 2 and Section 4 of this Agreement) and (b) directed by the Potential Investor to keep the Offering Materials and related information strictly confidential in accordance with this Agreement. The Potential Investor shall be responsible for any violation of this provision by any of the Related Parties.
- Potential Investor as Principal and Other Brokers or Agents – The Broker acknowledges and agrees that the Potential Investor is a principal and not an agent of or acting on behalf of any other party in connection with the purchase (or capitalization) of the Property and the broker hereby agrees that it will agree to only a 1% commission of the gross sale of the property at closing. The Potential Investor acknowledges that it has not had any discussion regarding the Property with any broker or agent. Potential Investor and its officers, directors, managers, members, affiliates, successor and assigns shall indemnify, defend and hold Owner and One Investment Group, their respective officers, directors, partners, employees, agents, representatives, and any of their affiliates, beneficiaries, successors and assigns, harmless from and against any and all claims, causes of action, damages, suits, demands, liabilities, fines, fees, costs and expenses (including but not limited to, court costs and attorney’s fees) of any kind, nature or character (collectively, the “Claims”) relating to the Property by any agents or brokers resulting from Potential Investor’s actions or failures to act and/or any actions or failures to act of any of the Related Parties.
- No Representations as to Offering Materials or Condition of Property- The Potential Investor understands and acknowledges that neither the Owner nor One Investment Group makes any representation or warranty as to the accuracy or completeness of the Offering Materials or the condition of the Property in any manner. The Potential Investor further understands and acknowledges that the information used in the preparation of the Offering Materials was furnished by the Owner and has not been independently verified by One Investment Group or the Owner, and is not guaranteed as to its completeness or accuracy. The Potential Investor agrees that neither the Owner, nor One Investment Group shall have any liability for any reason to the Potential Investor or any Related Parties resulting from the use of the Offering Materials by any person in connection with the sale of, or other investments by the Potential Investor in the Property whether or not consummated for any reason. Neither the Owner, nor One Investment Group is under any obligation to notify any of the undersigned or any Related Party or provide any further information to any of the undersigned or any Related Party if Owner and/or One Investment Group become aware of any inaccuracy, incompleteness or change in the Offering Materials. The undersigned acknowledges and agrees that neither (i) the Owner nor any person acting on Owner’s behalf or (ii) One Investment Group nor any person acting on One Investment Group’s behalf, have made any representation or warranty as to the accuracy or completeness of the Offering Materials, or the suitability of the information contained therein for any purpose whatsoever, and any representation or warranty (whether expressed or implied) in connection therewith is hereby expressly excluded. The Potential Investor further acknowledges and agrees that the Offering Materials provided to the undersigned are subject to, among other things, correction of errors and omissions, additions or deletion of terms, and withdrawal upon notice. The undersigned further acknowledges and agrees that neither Owner, One Investment Group or any person acting on Owner’s or One Investment Group’s behalf, shall have any liability to the undersigned or any Related Party resulting from the delivery to, or use by the undersigned or any Related Party of the Offering Materials or otherwise with respect thereto. Potential Investor and the Related Parties shall rely only their own due diligence and investigation of the Property, including but not limited to any financial, title, environmental, structural and physical, tenant, leases, contracts, claims, or any other matters.
- Withdrawal of Property from Market or Termination of Discussions – The Potential Investor acknowledges that the Property has been offered for sale or capitalization subject to withdrawal of the Property from the market at any time or rejection of any offer because of the terms thereof, or for any other reason whatsoever, without notice, as well as the termination of discussions with any party at any time without notice for any reason whatsoever. The Owner also reserves the right to accept any pre-emptive bid or otherwise alter any previously announced procedures related to the marketing of the Property for sale or capitalization.
- Term of Agreement – The terms and conditions of this Agreement shall remain in full force and effect for a period of two (2) years from the date hereof, provided that all indemnification obligations which may arise hereunder shall survive such expiration date or any earlier termination of this Agreement.
- Remedies – In the event that the Potential Investor and/or the Related Parties fail to comply with the terms and conditions of this Agreement, the Potential Investor and/or the Related Parties may be liable to Owner and/or One Investment Group for such breach and Owner and/or One Investment Group shall be entitled to exercise any right, power or remedy available at law or in equity for such breach.
- Applicable Law – This Agreement shall be governed by and construed in accordance with the laws of the state of Florida, without reference to its conflicts of law provisions.
- Access to Property, Property’s Management, Property Lender, and Property Tenants – Potential Investor and the Related Parties agree not to seek to gain access to any non-public areas of the Property or communicate with Property’s management employees, the holder of any financing encumbering the Property, the Property’s tenants, and the Owner’s partners in the ownership of the Property, without the prior written consent of Owner and One Investment Group, which consent may be withheld in the Owner’s and One Investment Group’s sole discretion.
- Entire Agreement, Waiver or Modification – This Agreement contains the entire understanding between the parties with respect to the subject matter hereof, and may not be altered, varied, revised or amended, except by an instrument in writing signed by the parties subsequent to the date of this Agreement. The parties have not made any other agreement or representation with respect to such matter.
- Severability – If any term or provision of this Agreement is held to be void or unenforceable, such term or provision will be ineffective and separable from the remaining terms and provisions of this Agreement without invalidating the remaining terms or provisions of this Agreement. In lieu of any invalid or unenforceable provision, a valid and enforceable provision will automatically be added containing terms as similar as possible to the ineffective provision, and the parties request that the court or any arbitrator to whom disputes relating to this Agreement are submitted, reform the ineffective provision in accordance with this paragraph.
- Counterparts; Facsimile/PDF Execution. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Amendment. Delivery of an executed counterpart of this Agreement by facsimile or email with PDF attachment shall be equally as effective as delivery of a manually executed counterpart of this Agreement.
Name: Spencer Friedman
Date: 24 April, 2019
Spencer Friedman has agreed to the confidentiality agreement.
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