21700 Oxnard Street, Suite 1295, Woodland Hills, CA 91367
818-252-9900 Office Fax 800-575-6603
www.SpectrumCRE.com
CONFIDENTIALITY, NON-DISCLOSURE, NON-CIRCUMVENTION, AND BROKERAGE AGREEMENT
This CONFIDENTIALITY, NON-DISCLOSURE, NON-CIRCUMVENTION AND BROKERAGE AGREEMENT (“Agreement”), in connection with the potential acquisition of 18433 Roscoe Boulevard, Northridge, California 91325 (“Transaction”), is made by and between Spectrum Commercial Real Estate, Inc., (“Broker”), on behalf of the owner (“Seller”), and inclusive of each of their employees, affiliates, subsidiaries, clients, agents, attorneys, brokerage company, and all others who may come into possession of the information which is the subject of this Agreement (collectively, the “Receiving Party”), sometimes referred to herein as a (“Party”), and collectively referred to as the (“Parties”). Both Parties agree to the following terms and conditions:
Broker has been authorized by Seller to disclose certain confidential and proprietary information to the Receiving Party, which includes any communication, written, oral, electronic, or otherwise, that may provide to Receiving Party on or after the date of this letter, information of commercial value concerning the business affairs of the Seller. Communication, including without limitation financial statements, rental agreements, letters of interest, operating expenses, labor and construction costs, advertising sources, forecasts, business plans, market studies, budgets, drawings, renderings, photographs or illustrations (whether or not such drawings, renderings, prototypes, or illustrations are protectable under patent, trademark, or copyright laws), contracts, fee schedules, sales information, and all other information of commercial value regarding the affairs of the Seller, regardless of the form or medium in which the information is contained or transmitted in connection with the Transaction (collectively, the “Confidential Information”). Receiving Party shall hold all Confidential Information furnished by Broker with regard to the Transaction in strict confidence.
Seller and Broker desire to protect against unauthorized use or disclosure by the Receiving Party of Confidential Information, and during the course of the Receiving Party’s relationship with Broker, the Receiving Party will have access to and become acquainted with Confidential Information, whether it is prepared by Broker (or any other business or entity), and which comes into the Receiving Party’s possession in any other way, and whether such Confidential Information shall constitute trade secrets as defined by law.
This Agreement is intended to encompass all aspects of the Transaction. This Agreement further applies to any and all confidential correspondence that may include but is not limited to future correspondence, contracts, and transactions, including but not limited to subsequent follow‐ups, repeats, extensions, renewals, or renegotiated contracts the Parties entertain in connection with the Transaction.
All Information shall be used for the sole purpose of evaluating the potential acquisition of the Transaction and it shall not at any time, or in any manner, be used for any other purpose. Nothing in this Agreement shall be construed as granting or implying any license or right to use the Confidential Information except as described herein.
Receiving Party understands that the Transaction is exclusively listed by Broker, or the Seller has agreed to let Broker procure offers under a market basis, and that Broker and its Agents are the procuring cause of this Transaction.
Unless otherwise agreed to in writing, or unless the Receiving Party completes the Transaction, Receiving Party will not disclose Confidential Information or disclose to any Persons that discussions or negotiations are taking place concerning the Transaction. Receiving Party will not reveal any information to any Persons or entities other than its employees, partners, advisors, accountant, legal counsel, and lenders actively and directly participating in the evaluation of the Confidential Information, for any purpose other than in connection with the proposed Transaction or Broker. Receiving Party further agrees that access to Seller’s information will be restricted to only those persons within the company who are those persons directly engaged in the analysis, investigation, and/or negotiations with respect to the Transaction, or professionals that Receiving Party may employ on a “need to know” basis.
The term “Person” as used in this Agreement shall be broadly interpreted to include, without limitation, any governmental body, corporation, partnership, limited liability company, trust, other business entity, or any individual.
Receiving Party agrees that no portion of the enclosed materials may be copied or otherwise reproduced without the prior written authorization of Seller or its Agents and that, upon written notice, Receiving Party will promptly deliver to Broker all the information furnished by Broker or the Seller without retaining copies, summaries, analyses, or extracts thereof.
Receiving Party agrees that all negotiations regarding the Transaction will be negotiated and transacted only through Broker. The undersigned further agrees that this agreement includes any partner, partnership, joint venture, corporation, trust, or other similar entity which that Person or entity represents or an entity in which any partner, he, she, or it, holds an ownership or beneficial interest.
Receiving Party or assignees, affiliates, or associates are not to contact Seller under any circumstance without written agreement from Broker or its Agents named below.
Receiving Party acknowledges that it is a principal and not an agent on behalf of any other party in conjunction with the Transaction. Receiving Party acknowledges that it is not working with any other broker or agent other than the Agents signing this Agreement regarding the Transaction. Buyer’s Agents are an integral part of this Agreement and are bound by the terms herein.
Receiving Party shall not in any instance or in any manner, interfere with, compete with, or cause interference of, either directly or indirectly through a third party, the business processes, business objectives, commercial arrangements, or other agreement or relationship with which Broker is involved with, including, without limitation, any attempt to sell the Transaction, or purchase the note related to the Project, without Broker’s specific and express involvement and consent. In the event of an actual or perceived conflict by Broker, and after notice to Receiving Party, Receiving Party shall immediately cease and desist any and all work or action related to such interference or conflict.
Receiving Party understands and acknowledges that Seller, Broker, and its Agents are not making any representation or warranty, expressed or implied, as to the accuracy or completeness of the Information provided to Receiving Party, who agrees that Seller, Broker, and its Agents shall not have any liability to Receiving Party or to any of its representatives relating to or resulting from the use of the Confidential Information or any errors therein or omissions therefrom. Further, the offering is made subject to omissions, corrections of errors, changes of price, or other terms, with respect to sale or withdrawal from the market without notice. Only those representations or warranties which are made in a final definitive purchase or lease agreement, subject to the limitations and restrictions contained in that agreement, regarding the purchase, as, when, and if executed and delivered shall have any legal effect.
In the event of and upon Receiving Party’s default of this Agreement; or if Receiving Party, or an entity in which Receiving Party has an interest, or a Person or entity introduced to the Transaction and/or Seller by Receiving Party enters into a (a) sale and/or purchase agreement, or (b) management contract, lease, or other financial arrangement with Seller with respect to the Transaction or part thereof, including purchasing or leasing the real estate from Seller, in violation of this Agreement, Receiving Party shall be liable to Broker and to its Agent for any and all damages Broker and Agent may suffer, and that Broker and its Agent shall have the right to collect two and one-half percent (2.5%) of the Purchase Price of the Transaction as liquidated damages. To ensure the collection of its compensation, Receiving Party hereby grants Broker and its Agents the right to place a lien on the real estate and/or business assets which may be acquired by Receiving Party in violation of this Agreement, and Receiving Party agrees and does hereby appoint Broker and/or Agent its attorney‐in‐fact to execute all documents necessary to perfect such a lien, and this Agreement shall be Receiving Party’s consent to do so.
It is understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement by Receiving Party or any of its representatives and that Seller and its Agent shall be entitled to injunctions and equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by Receiving Party or any of its representatives, but shall be in addition to all other remedies available at law or equity to Seller and its Agent. In the event of any dispute or litigation arising out of or relating to this Agreement, the prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs, and Receiving Party shall be responsible for expenses incurred in the trial court and appellate levels.
In the event Receiving Party is requested or required pursuant to any legal process to disclose to any court or tribunal any Information regarding the Transaction, Receiving Party will: (i) provide Seller with prompt notice of such a request and the documents or information requested so that the Seller may seek an appropriate protective order or waive Receiving Party‘s compliance with the provisions of this Agreement; and (ii) cooperate with Seller in taking any reasonably available steps to resist or narrow such a request for Information or to obtain a court order or other reliable assurance that Seller designates. If in the absence of a protective order or the receipt of a waiver under this Agreement Receiving Party is, in the written opinion of its counsel, compelled to disclose Information to any court or tribunal, or else stand liable for contempt or suffer other censure or other penalty, Receiving Party may disclose Information to such a court or tribunal without liability under this Agreement.
Receiving Party agrees to indemnify, defend, and hold Broker, its Agents, officers, employees, representatives, attorneys, and professional advisors harmless from and against any action, claim, or proceeding and any costs, expenses, and other liabilities arising therefrom by any third party as a result of any breach of this Agreement by Receiving Party.
This Agreement shall be governed by the laws and construed in accordance with the laws of the State of California, and the Parties consent and agree that Los Angeles County, California, shall be the sole and exclusive venue for all proceedings relating to this Agreement and/or its subject matter, including without limitation the enforcement hereof. Receiving Party hereby waives all objections to establishing venue elsewhere.
If any provision of this Agreement is found to violate any statute, regulation, rule, order, or decree of any governmental authority, court, agency, or exchange, or in any other way held to be invalid, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this Agreement, and such invalid provision shall be deemed deleted herefrom to the minimum extent necessary to cure such a violation.
Telecopied and PDF signatures may be used in place of original signatures on this Agreement, and the Parties intend to be bound by the signatures on such telecopied documents or PDF copies.
This is not an agreement to sell or lease land or real property, nor an offer of sale. No agreement of sale binding upon Seller or any of their associates or affiliated companies shall be deemed to exist, at law or equity, until Seller enters into a formal binding agreement of sale.
Seller reserves the right to reject any or all proposals or expressions of interest in the Transaction and to terminate discussions.
The rights and obligations of the Parties agreed under this Agreement shall survive termination of discussions and negotiations between the parties concerning the Transaction, and Receiving Party understands that this agreement is in full force until both Parties sign a written cancellation.
The Persons signing on behalf of Receiving Party represent that they have the authority to bind the party for whom they sign.
Broker: David Ezra
Spectrum Commercial Real Estate, Inc.,
Email to: [email protected]
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