This is to advise you that McGrath Realty Inc., and its affiliates, partners, domain names, related websites and subsidiaries is acting as the Broker (“Broker”) in connection with the following offering plan on selected properties in our confidential section.
Therefore, at the request of the seller, all potential Buyers and/or Participating Brokers will be furnished with initial information upon the signing of this C.A. This information may include, without limitation, various papers, documents, legal instruments, leases, mortgage instruments, studies, brochures, computer output, floor plans, site plans, survey, renderings, drawings, aerials, cash flow projections if applicable, architectural plans, traffic studies, phase I environmental, soil- boring test, engineering reports, and other materials including any discussions or Property visitations which are conducted by Buyer. (All of the aforementioned information is collectively referred to as “Evaluation Material.”) In this connection, we are prepared to review the Evaluation on the condition that Buyer agrees to treat the Evaluation Material confidentially as hereinafter provided. Therefore, as a prerequisite to receiving this Evaluation Material Buyer, hereby agree as follows:
1. All Evaluation Material furnished to Buyer and Participating Brokers will not be used or duplicated by Buyer or Broker for any purpose other than evaluating a possible investment in the offering site by Buyer. Therefore, Buyer and Participating Brokers agrees to keep all Evaluation Material (other than information which is a matter of public record or is provided in other sources readily available to the public other than as a result of disclosure by Buyer) strictly confidential; provided; however, that the Evaluation Material may be disclosed to directors, officers, and employees of Buyer, and to outside counsel and Buyer’s accounting firm (all of whom are collectively referred to as “Related Parties”) who, in Buyer ‘s judgment, need to know such information for the purpose of evaluating a possible investment in the offering site. These Related Parties shall be informed by Buyer of the confidential nature of such information and shall be directed by Buyer to keep all such information in the strictest confidence and to use such information only for the purpose of evaluating a possible investment of this site by Buyer. Principal shall keep a record as to the exact location of all Evaluation Materials and all copies thereof.
2. Buyer and Participating Brokers agrees not to make any of the Evaluation Material available or disclose any of the contents of the Evaluation Material, or the fact that discussions or negotiations are taking place concerning a possible investment in the offering property by Buyer, or any of the terms, covenants, conditions, or other facts with respect to any such investment proposal, including the status thereof, to any person other than as permitted by the preceding paragraph unless: (i) such person has been identified to the Owner; (ii) Owner has approved in writing the disclosure of the Evaluation Material to such person; and (iii) such person has entered into a confidentiality agreement with Owner, the provisions of such agreement shall be substantially the same as the provisions of this Agreement. The term “person” as used in this Agreement shall be interpreted broadly to include, without limitation, any corporation, partnership, association, individual and limited liability company. Buyer will direct Related Parties to whom Evaluation Material is made available not to make similar disclosures and any such disclosure shall be deemed made by, and be the responsibility of Buyer.
3. Although we have endeavored to include in the Evaluation Material information known to us which we believe to be relevant for the purpose of your investigation, Buyer understands and acknowledges that the Owner does not make any representation or warranty as to the accuracy or completeness of the Evaluation Material. The financial information and projections contained in the Evaluation Material, if any, represent estimates based on assumptions considered reasonable under the circumstances although they have not been independently verified by the Owner. Owner makes no representations or warranties, expressed or implied, that actual results will conform to such projections. Owner expressly disclaims any and all liability for representations or warranties, expressed or implied, contained in this Evaluation Material, or omissions from this Evaluation Material, or in any other written or oral communications transmitted or made available to Buyer. Buyer agrees that the Owner shall have any liability to Buyer or any of its representatives or Related Parties resulting from its use of or reliance upon the Evaluation Material.
4. Owner expressly reserves the right, at their sole discretion, to reject any and all expressions of interest or offers to acquire the offering site from Buyer or any other person or entity, and/or to terminate discussions with Buyer, or any other person or entity at any time with or without notice. Owner shall have no legal commitment or obligation to Buyer, or any other person or entity reviewing the Evaluation Material or making any offer to acquire offering site unless and until such offer is accepted on whatever terms deemed desirable by Owner including the necessary officers and/or Financial Committee of the Board of Directors of Owner, or a written agreement for the acquisition of the site has been fully executed, delivered and approved by Owner and its legal counsel, any conditions to Owner’s obligations hereunder have been satisfied or waived, and any conditions to Buyer ‘s obligations there under have been fully satisfied in the opinion of Owner.
5. Buyer will be granted the right to perform site inspections of the Property during regular business hours upon advance notice to the Owner and at the Owner’s sole and absolute discretion. Buyer acknowledges that the cost and expenses of such access shall be borne solely by Buyer. In addition, Buyer hereby indemnifies, defends and holds the Owner, and the Property harmless from any and all costs, loss, damages or expenses of any kind or nature arising out of or resulting from such entry and/or activities upon the Property by Buyer, its agents, contractors and/or subcontractors.
6. This Agreement shall be governed by, and construed in accordance with, the laws of the State and County in which the Property is located. Any litigation arising out of this Agreement or the transactions contemplated hereby shall be brought in the courts of the State and County in which the Property is located and the parties hereto consent to the venue of such courts.
7. Buyer agrees to conduct all conversations and negotiations regarding the proposed site through McGrath Realty Inc., and will make no attempt to circumvent the relationship between Owner and McGrath Realty Inc. and will not deal directly with Owner without the express permission of McGrath Realty Inc.
If you are in agreement with the foregoing, Buyer and Participating Brokers should execute and return a copy of this letter to McGrath Realty Inc. The Evaluation Material will be provided as soon as the Confidentiality/Indemnification Agreement is executed.