Confidentiality and Buyer Registration Agreement
This letter ("Agreement") will serve to confirm our agreement concerning a certain offering memorandum and other material, data, and information, whether furnished in writing, electronically, orally or otherwise, before or after the date of this Agreement, together with any and all analyses or other documents prepared by us or any of our affiliates’ respective directors, officers, employees, advisors, attorneys, accountants, consultants, contractors, subcontractors, agents or representatives (collectively, our "Representatives") which contain or otherwise reflect such material, data or information (collectively, "Evaluation Material"), which you and/or one or more of your affiliates, partners, representatives or advisors may make available to us for study in connection with a possible purchase by us of the above-referenced property, hereinafter called the “Property”.
We may request and you may agree to furnish us with the Evaluation Material in connection with discussions and negotiations concerning a possible transaction involving the Property only on the condition that we treat such Evaluation Material confidentially and confirm certain representations to you. Notwithstanding the foregoing, there shall be no obligation under this Agreement with respect to any Evaluation Material which (i) is or becomes generally available to the general public other than as a result of disclosure directly or indirectly by us or any of our Representatives, (ii) is rightfully received by us from a third party, provided that such information was not furnished to us by a source known by us to be bound by a confidentiality agreement with you or otherwise prohibited from disclosing the information to us, (iii) is required by law or by judicial process to be disclosed provided that (a) prior to such disclosure, unless prohibited by law, we will notify you in writing of such requirement or request, (b) prior to such disclosure we will cooperate with you, at your sole cost and expense, to obtain a protective order or other reasonable assurance that confidential treatment will be accorded to the Evaluation Material so disclosed, and (c) we will only disclose that portion of the Evaluation Material that is legally required to be disclosed. As a prerequisite to your furnishing to us the Evaluation Material, we hereby represent and agree as follows:
1. The Evaluation Material furnished to us will be used by us solely for evaluating a possible transaction exclusively for our own account, as principal in the transaction, and not as a broker or agent for any other person. Therefore we agree to keep all Evaluation Material strictly confidential; provided, however, that any such Evaluation Material may be disclosed to our Representatives who need to know such information for the purpose of assisting us with our possible purchase of the Property. Such Representatives shall be informed by us of the confidential nature of such information and shall be directed by us to (a) treat such information with strict confidence and not disclose, discuss or make available the Evaluation Material to or with any person or legal entity of any kind (without your prior written consent in your sole and absolute discretion) and (b) take all security precautions to protect the Evaluation Material's confidentiality using a commercially reasonable degree of care at least commensurate with the level of protection that they customarily accord their own confidential information. We acknowledge responsibility for any disclosure of Evaluation Material or any other breach of this Agreement by any of our Representatives.
We agree not to copy or duplicate the Evaluation Material and to return or destroy the Evaluation Material to you promptly if we decide not to go forward with discussions or if requested by you in writing; provided, however, that we may retain a copy of the Evaluation Material pursuant to a bona fide, pre-existing document retention policy applied in the ordinary course of business consistent with past practice. We agree that the owner of the Property ("Owner") and Cushman & Wakefield, Inc. ("CW") will have no adequate remedy at law if we violate any of the terms of this Agreement. In such event, the Owner or CW will have the right, in addition to any other right the Owner or CW may have, to seek injunctive relief to restrain any breach or threatened breach by us or specific enforcement of such terms with or without proof of actual damages.
In addition, we agree that we will not disclose and we will direct our Representatives who are given access to the Evaluation Material in accordance with the terms hereof, not to disclose to any person, the fact that the Evaluation Material has been made available to us, that discussions or negotiations among us, the Owner, and CW are now taking place or will take place, or any of the terms, conditions, or other facts with respect to the possible acquisition of the Property.
2. Although you have endeavored to include in the Evaluation Material information which you believe to be relevant for the purpose of helping us in our evaluation of the Property for possible purchase, we understand and acknowledge that neither the Owner nor CW make any representation or warranty to us as to the accuracy or completeness of the Evaluation Material. We agree that the Owner and CW shall not have any liability to us as a result of our use of the Evaluation Material, and it is understood that we are expected to perform and are responsible for such due diligence investigations and inspections of the Property, including investigation of any environmental conditions, as we deem necessary or desirable and as permitted by agreement with the Owner. To the extent that any Evaluation Materials include materials subject to the attorney-client privilege or other attorney work-product protection, such disclosure is inadvertent and we acknowledge and agree that you are not waiving, and shall not be deemed to have waived or diminished, your attorney work-product protections, attorney-client privileges or other similar protections and privileges as a result of disclosing any such Evaluation Materials.
3. We also represent that no broker or agent represents us or will represent us in any possible transaction involving the Property.
4. The confidentiality agreement shall terminate two (2) years from date of acceptance.
5. We agree that the failure or delay by you in exercising any right or privilege under this Agreement will not operate as a waiver of such right or privilege. This Agreement may be signed in counterparts and may only be modified or waived by subsequent written agreement signed by the parties. To facilitate the execution of this Agreement, the parties have agreed to accept facsimile/e-mailed transmissions as original documents.
We agree that this Agreement will be governed and construed in accordance with the laws of the State of New York without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if possible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless continue and be deemed to be in full force and effect and binding upon the parties. We represent and warrant that this Agreement has been duly and validly authorized, executed and delivered and is a valid and binding agreement enforceable against us in accordance with its terms. This Agreement is the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous communications, negotiations, and discussions of the parties with respect to such subject matter.