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This Disclaimer, Non-Circumvent and Non-Disclosure Agreement (“Agreement”), is made and entered into as of the date executed (the “Effective Date”), and is entered into by and between the undersigned (“Recipient”), and Next Wave Commercial Real Estate, Inc., a California corporation (“NWC”). This Agreement confirms and represents the understandings of the Recipient, NWC and the owner (“Owner”) of the subject real property and improvements thereon (“Property”), with respect to the offering memorandum and any and all other information and materials regarding the Property, the Owner or any tenant at the Property (collectively “Marketing Materials”), provided to Recipient or any of Recipient’s directors, officers, employees, agents, brokers, clients, future clients, or other representatives and affiliates (collectively “Representatives”). Recipient warrants and represents that any and all of its Representatives shall abide by all Recipient obligations stated herein.
WHEREAS, Owner has retained NWC as its exclusive agent for the sale of the Property, and the Marketing Materials were prepared by NWC based on limited information for review by a limited and controlled number of parties, and do not purport to provide a complete, accurate summary of the Property;
WHEREAS, Recipient is, will be and wishes to be evaluating the purchase of the Property, on behalf of Recipient or Recipient’s Representatives, and would be receiving Marketing Materials during the course of such evaluation; and
WHEREAS, Recipient acknowledges that Owner and NWC has a substantial interest in maintaining the confidentiality of the Marketing Materials, and would not disclose the Marketing Materials to Recipient without the protections of the Marketing Materials afforded in this Agreement.
AND NOW, THEREFORE, Recipient, on behalf of itself and its Representatives, acknowledges and agrees to this Agreement, and NWC makes any disclosure of Marketing Materials based upon Recipient’s agreement hereto:
Recipient acknowledges and agrees that Recipient and its Representatives are solely responsible for conducting its own due diligence, verifying the accuracy of all information contained in the Marketing Materials, obtaining all information that Recipient or its Representatives may need or desire in contemplation of the potential Property purchase, and verifying suitability of the Property for Recipient’s or its Representative’s purposes.
Although the information contained in the Marketing Materials is believed to be correct and obtained from sources believed to be reliable, Owner and NWC disclaim and shall not be responsible for any inaccuracies or omissions in the Marketing Materials. Recipient acknowledges that any financial projections were developed by Owner, NWC or third parties based on assumptions relating to the economy, opinions, projections and other information and forces beyond the control of NWC. Recipient understands and acknowledges that neither Owner nor NWC makes any representation or warranty as to the accuracy or completeness of the Marketing Materials or the condition or suitability of the Property in any manner.
Recipient agrees that Recipient and its Representatives shall hold harmless Owner, NWC, and its owners, directors, employees, agents, brokers and other affiliates from any and all liability related to representation and warranties, expressed and implied, contained in the Marketing Materials. Recipient agrees that neither Owner nor NWC shall have any liability to the Recipient or any of its Representatives resulting from the use of the Marketing Materials by any person in connection with the sale of the Property whether or not consummated for any reason.
In connection with the disclosure of Marketing Materials to Recipient, Recipient warrants, represents and agrees that Recipient and its Representatives shall keep all Marketing Materials confidential. NWC discloses the Marketing Materials to Recipient in reliance upon Recipient’s agreement, warranties and representations herein.
Recipient agrees that Recipient and its Representatives shall not to use any Marketing Materials for any purpose, except to evaluate the potential purchase of the Property from Owner and through NWC. Recipient agrees not to disclose any Marketing Materials to third parties, and not to export, directly or indirectly, any information related to the Marketing Materials. Recipient and its Representatives will hold and treat this Marketing Materials in the strictest confidence and will not, directly or indirectly, disclose or permit anyone else to disclose this confidential information or any part of the Marketing Materials to any other person or entity, nor will anyone use or permit the use of this Marketing Materials in any fashion or manner detrimental to or in conflict with the interest of NWC or Owner. No right or license, whether expressed or implied, in the Marketing Materials is granted to the Recipient hereunder. Title to the Marketing Materials will remain solely in NWC, and any modifications and improvements by the Recipient shall be the sole property of NWC.
Recipient and its Representatives agree they will take reasonable security measures and use reasonable care to preserve and protect the secrecy of and to avoid disclosure or the use of the Marketing Materials other than as permitted hereby or as required by law. Recipient and its Representatives shall not make any copies of Marketing Materials, and at all times any such copies shall be returned to NWC immediately upon request, or when the Recipient declines to make an offer for the Property or otherwise ceases discussion or negotiations with respect to the Property. Recipient and its Representatives agree to promptly advise NWC, in writing, of any misappropriation or suspected misuse by any person or entity of such Marketing Materials which may come to their attention.
Recipient warrants and represents it and its Representatives will not solicit, influence, entice or in any way divert any person or entity from doing business with Owner or NWC. Recipient further warrants that it and its Representatives will not to disparage NWC, Owner or the Property, at any time following the Effective Date.
Recipient acknowledges that the Property is 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, or for no reason, without notice, as well as the termination of discussions with any party at any time without notice for any reason whatsoever. Owner shall have no legal commitment or obligations to any person or entity reviewing the Marketing Materials, or making an offer to purchase the Property, unless and until a definitive written agreement for the purchase and sale of the Property has been fully negotiated, executed, delivered by Owner, and any conditions to Owner’s obligation thereunder have been satisfied or waived.
This Agreement shall survive until such time as all Marketing Materials disclosed hereunder becomes publicly known and made generally available through no action or inaction of Recipient or its Representatives, or thirty (30) years from the Effective Date, whichever date is earlier.
Recipient and NWC are parties to this Agreement. Owner and tenants of the Property are intended third-party beneficiaries of this Agreement. Recipient acknowledges and agrees that no commission shall be owed to Recipient or its Representatives by Owner or NWC under this Agreement, and unless a separate written commission agreement is entered into.
Recipient agrees that any violation or threatened violation of this Agreement by Recipient or its Representatives will cause irreparable injury, entitling NWC and intended third party beneficiaries to obtain injunctive and other appropriate equitable relief in addition to all other legal remedies.
This Agreement contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement was negotiated in San Diego, California, and/or concerns property within San Diego, California, and will be governed by the laws of the State of California without giving effect to choice of law rules. The parties agree to submit to the exclusive jurisdiction of, and venue in, San Diego, California in any dispute relating to this Agreement. Recipient agrees to pay NWC’s reasonable attorney’s fees as damages and not costs in all disputes or proceedings arising under this Agreement, including any arbitration, bankruptcy, civil action, counterclaim, or post-judgment action or appeal. The provisions of this Agreement are divisible, and if any of the provisions shall be deemed invalid or unenforceable, that provision shall be deemed limited to the extent necessary to render it valid and enforceable, and the remaining provisions of this Agreement shall continue in full force and effect. The undersigned represents and warrants authority to enter into this Agreement. This Agreement may be executed electronically and in counterparts, and may be transmitted electronically or via facsimile.