Confidentiality and Buyer Registration Agreement
Marcus & Millichap Real Estate Investment Brokerage Company ("Broker") has been retained as the exclusive advisor and broker regarding the sale of the property known as 4th Place Apartments, located at 6735 Southwest 4th Place, Gainesville, FL, United States (the "Property").
To receive an Offering Memorandum ("Offering Memorandum") please read and accept this completed Confidentiality Agreement to Broker. The Offering Memorandum has been prepared by Broker for use by a limited number of parties and does not purport to provide a necessarily accurate or complete summary of the Property or any of the documents related thereto, nor does it purport to be all-inclusive or to contain all of the information that prospective Buyers may need or desire in connection with their evaluation of the potential purchase of the Property. All projections have been developed by Broker and designated sources and are based upon assumptions relating to the general economy, competition, and other factors beyond the control of the Broker and Seller and therefore are subject to variation and modification. No representation is made by Broker or Seller as to the accuracy or completeness of the information contained in the Offering Memorandum, and nothing contained therein shall be relied on as a promise or representation as to the future performance of the Property. Although the information contained in the O.M. is believed to be correct, Seller, Broker and their respective employees disclaim any responsibility for inaccuracies and expect potential purchasers and their representatives to exercise independent due diligence in verifying all such information. Further, Broker, Seller and its employees disclaim any and all liability for representations and warranties, expressed and implied, contained in or omitted from the Offering Memorandum or any other written or oral communication transmitted or made available to the potential purchaser. The Offering Memorandum does not constitute a representation that there has been no change in the business or affairs of the property or the owner of the property since the date of preparation of the Offering Memorandum. Analysis and verification of the information contained in the Offering Memorandum are solely the responsibility of the potential purchaser of the Property Buyer. Additional information and an opportunity to inspect the Property will be made available at the discretion of the owner of the Property, and upon written request to interested and qualified potential purchasers.
By accepting the Offering Memorandum, you agree to indemnify, defend, protect and hold Seller and Broker and any affiliate of Seller or Broker harmless from and against any and all claims, damages, demands, liabilities, losses, costs or expenses (including reasonable attorney's fees, collectively "Claims") arising, directly or indirectly, from any actions or omissions of the potential purchaser, its employees, officers, directors or agents.
By accepting the Offering Memorandum, you acknowledge that you are a principal and not an agent of or acting on behalf of any other party in connection with the potential acquisition of the Property. Furthermore, Buyer acknowledges that it has not had any discussion regarding the sale of the Property with any other broker or agent other than Broker or an agent/broker properly identified through this registration process, including but not limited to, resolutions of incomplete, conflicting or duplicate registrations. Buyer shall indemnify and hold Seller and Broker harmless from and against any claims, causes of action or liabilities, including, without limitation, reasonable attorney's fees and court costs which may be incurred with respect to any claims for other real estate commissions, Broker's fees or finder's fees in relation to or in connection with the Property to the extent claimed, through or under Seller.
The Seller and Broker each expressly reserve the right, at their sole discretion, to reject any or all expressions of interest or offers regarding the Property and/or to terminate discussions with any entity at any time with or without notice. The Seller shall have no legal commitment or obligations to any entity reviewing the Offering Memorandum or making an offer to purchase the Property unless a written agreement for the purchase of the Property has been fully executed, delivered, and approved by the Seller and its legal counsel, and any conditions to the Seller's obligation thereunder have been satisfied or waived.
The Offering Memorandum and its contents, except such information which is a matter of public record or is provided in sources available to the general public, are confidential in nature. By accepting the Offering Memorandum, you agree that you will hold and treat it in the strictest confidence, that you will not photocopy or duplicate it, that you will not disclose the Offering Memorandum or any of the contents to any other entity (except to outside advisors retained by you, if necessary, for your determination of whether or not to make an offer to the purchase property and from whom you have obtained an agreement of confidentiality) without prior written authorization of the Seller or Broker, and that you will not use the Offering Memorandum or any of the contents in any fashion or manner detrimental to the interest of the Seller or Broker.
No employee of Seller or at the Property is to be contacted without the written approval of the listing agents and doing so would constitute a violation of this Confidentiality Agreement.
CONFIDENTIALITY AGREEMENT
VIEWS OF MT. AIRY – CINCINNATI, OHIO
Marcus & Millichap Real Estate Investment Services (“Marcus”) has been retained by Park Valley Reorganization, LLC (the “Company”) to act as the Company’s exclusive financial advisor with respect to arranging the sale of the Views of Mt. Airy, containing 282 apartment units in Cincinnati, Ohio (“Property”).
Marcus and the Company have in their possession and are prepared to make available to the Undersigned certain information concerning the Property and the Company, subject to the terms and conditions set forth below and any limiting conditions set forth in the Confidential Information (as hereinafter defined). As used in this Agreement, “Confidential Information” means (i) any information regarding the Company or the Property set forth in the Confidential Information Memorandum, (ii) negotiations or discussions with Marcus or the Company regarding the Property, (iii) that the Undersigned may be considering the Property, and (iv) and such other information that Marcus or the Company delivers to the Undersigned regarding the Company or the Property. The term “Confidential Information” will not, however, include information which is or becomes publicly available other than as a result of a disclosure by the Undersigned (as hereinafter defined), or any affiliate or representative of the Undersigned, or any third party, such as a law, accounting, engineering or environmental review firm, engaged by the Undersigned to assist the Undersigned in its consideration and underwriting of the Property or consummation of a transaction involving the Property (a “Transaction”).
All Confidential Information provided to the Undersigned by or through the Company is subject to the following conditions:
1. All Confidential Information shall continue to be the property of the Company.
2. The Confidential Information (a) will be used solely in connection with the Undersigned’s evaluation of the Property and the consummation of a Transaction and for no other reason, and (b) may not be otherwise copied or duplicated. The Confidential Information must be returned to the Company or at the Company’s option destroyed immediately upon request, except that the Undersigned may retain a copy in its files if regulatory requirements require it to do so.
3. The Confidential Information may only be disclosed to the Undersigned’s officers, employees, legal counsel, accountants, and other third party firms (such as engineering and environmental review firms) engaged by the Undersigned in connection with the evaluation of the Property and consummation of a Transaction (“Related Parties”), and only (a) for the purpose of assisting in the evaluation of the Property and consummation of a Transaction, and (b) provided such third party Related Parties agree to keep all Confidential Information in strict confidence to the same extent as required by the Undersigned under this Agreement. All Confidential Information will be kept strictly confidential and the Undersigned will not (except as required by applicable law, regulation or legal process), without the Company’s prior written consent, disclose any Confidential Information in any manner except as set forth in this Agreement.
4. Notwithstanding the foregoing, if the Undersigned or any of the Related Parties are required to disclose any of the Confidential Information in any judicial, administrative or other similar process, the Undersigned or its Related Parties may disclose such information to the requesting party, provided it or they give the Company prompt written notice of such request and disclosure. The Undersigned will provide the Company with prompt written notice of each such request so that the Company may seek a protective order or other appropriate remedy and/or waiver in compliance with the provisions of this Confidentiality Agreement.
5. Neither the Undersigned nor the Related Parties will, without the prior written approval of the Company, contact any of the Company’s employees, any employees of any firm engaged by the Company in connection with the Property, any tenants of the Company’s existing properties, or any governmental officials (including officials of all state, local and federal bodies) regarding the Property.
6. The Undersigned understands and acknowledges that (a) the Confidential Information is being provided for information purposes only, (b) the information contained therein has not been independently verified by Marcus, and (c) neither the Company nor Marcus make any representation, warranty or guaranty as to the accuracy or completeness of the Confidential Information.
7. The Undersigned understands and acknowledges that the Confidential Information contains only selected information and does not purport to be all- inclusive or contain all information that may be required by a prospective investor considering a Transaction, and is not intended as a substitute for independent due diligence and analysis by the Undersigned.
8. The Undersigned specifically agrees to rely on its own due diligence, including without limitation its own due diligence investigations of the Company and of all physical, environmental, market and financial matters pertaining to the Property, in connection with any decision by the Undersigned to consummate a Transaction.
9. The Undersigned acknowledges that the Company nor Marcus has any responsibility to update the Confidential Information.
10. The Undersigned represents that it is a principal and will not look to the Company or Marcus for any fee, commission or other compensation relating to the Property. The Undersigned also hereby acknowledges that it has not dealt with any broker, other than Marcus, regarding the Transaction.
11. The Undersigned acknowledges that the Property is subject to withdrawal from the market, prior placement or rejection of any proposal for any reason whatsoever, or for no reason, without notice.
12. This agreement shall terminate twenty-four (24) months from the date hereof except as to written claims by the Company against the Undersigned prior thereto.
13. This agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio.
14. The term “Undersigned” shall include (a) the individual named below, (b) the entity named below, (c) any entity which such named entity owns or controls, (d) any entity that owns or controls the entity named below, and (e) any entity that is under common ownership or control with the entity named below.
By the electronic execution of this Agreement you are hereby accepting the terms outlined above.
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (the “Agreement”) is made as of the date set forth below by _________________________________, in favor of 1300 Independence Place Drive Holdings, LLC, a Maryland limited liability company (“Owner”).
Recitals:
A. Owner owns certain real property described on Exhibit “A” attached hereto (the “Real Property”).
B. The Reviewer has requested Evaluation Material (as hereinafter defined) about the Real Property. As a condition to providing such Evaluation Material, Owner has requested that the Reviewer agree to treat such Evaluation Material confidentially. Reviewer has agreed to abide by the following terms and conditions:
Agreement:
1. Disclosure of Evaluation Material. Owner may, at its option, from time to time, hereafter disclose to Reviewer such information relating to the Real Property as may be reasonably requested by Reviewer and which Owner elects to disclose in its sole discretion, to permit Reviewer to evaluate the Real Property. Delivery of such information creates no agreement to sell either express or implied. All of the information disclosed, whether disclosed orally or in writing, by delivery of copies of documents or other materials or by electronic transmission, by any other method, or by permitting access to and inspection of records, is hereinafter referred to as the “Evaluation Material.” The term “Evaluation Material” shall be deemed also to include all cash flow information, analyses, compilations, modeling, studies or other documents prepared by the Reviewer or its representatives containing or based in whole or in part on any information furnished by Owner or any of its representatives, agents or servicers.
2. Confidentiality and Ownership of Evaluation Material. Reviewer acknowledges and agrees that any and all of the Evaluation Material furnished to it pursuant to Section 1 is confidential and proprietary to Owner and Reviewer will not acquire any ownership interest in the Evaluation Material by virtue of its disclosure pursuant to this Agreement. Owner shall not be required to mark or identify any of the Evaluation Material as being confidential. Reviewer shall use all such other measures to protect the confidentiality of the Evaluation Material as it normally takes to protect the confidentiality of its own Evaluation Material or which are otherwise reasonable or appropriate or reasonably requested by Owner.
3. Permitted Uses. Reviewer agrees that the Evaluation Material is being provided pursuant to an express limited privilege, and the Evaluation Material will be used only for the purposes of permitting Reviewer to evaluate a possible purchase of the Real Property. The Evaluation Material shall not be duplicated or used for any purpose other than as described in this Section 3.
4. Restrictions On Use and Disclosure of Evaluation Material. Reviewer agrees that it:
(a) shall keep the Evaluation Material confidential;
(b) shall restrict access to the Evaluation Material to those employees, agents, representatives and third party advisors of the Reviewer who are actively involved in the evaluation process and are also subject to an obligation to keep the Evaluation Material confidential in accordance with the terms of this Agreement;
(c) shall advise all persons given access to the Evaluation Material that it is confidential and may not be used except as herein permitted and may not be disclosed to third parties or used for any purpose other than that permitted hereby;
(d) shall not authorize any other person or entity to, communicate with any third party vendors with respect to the Real Property, with the accountants or attorneys of any such parties, or with any person or party, including any appraiser, tenant, managing or leasing agent, environmental consultant or engineering consultant, connected with, related to, or whose name is obtained from the Evaluation Material with respect to the Real Property, without prior written consent of Owner, which consent may be withheld for any reason or no reason in the sole discretion of Owner;
(e) shall not, without the prior written consent of Owner , except as may otherwise be required by law or governmental regulation, disclose to any person (i) that any investigations, discussions or negotiations are taking place concerning any transaction or any other possible transaction involving Owner and Reviewer, (ii) that it has requested or received any Evaluation Material, or (iii) any of the terms, conditions or other facts with respect to any transaction or such investigations, discussions or negotiations, including the status thereof. The term “person” as used in the agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or entity. In the event that the Reviewer is requested or becomes legally compelled to disclose any of the Evaluation Material or the fact that the Evaluation Material has been made available to the Reviewer or that discussions or negotiations between the Reviewer and Owner are taking place, the Reviewer agrees to provide Owner with prompt written notice of such request so that Owner may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement.
5. Inapplicability of Restrictions. The restrictions on use and confidentiality contained herein shall not apply to any portion of the Evaluation Material which was publicly known or generally known at the time of the disclosure or becomes public knowledge or generally known without breach of this Agreement by Reviewer or anyone given access to the Evaluation Material by Reviewer.
6. Term of Restrictions. The restrictions on use and disclosure of the Evaluation Material contained herein shall continue in effect for so long as such Evaluation Material remains confidential and proprietary to the Reviewer under applicable law, but in no event later than one (1) year after the date set forth below.
7. Return of Materials. At any time upon receipt of a written request from Owner and also upon termination of the evaluation or any resulting negotiation, Reviewer shall return all of the Evaluation Material then in its possession or in the possession of any of its employees or agents and any copies thereof or excerpts or summaries therefrom to Owner at such location and in such manner as may be reasonably requested by Owner. Reviewer shall also destroy or obliterate all Evaluation Material summarized, referred to or otherwise contained in any of Reviewer's internal memoranda or analyses that contains material other than the Evaluation Material, which it does not want to turn over to Owner, and delete from any computer system any Evaluation Material contained in computer memory and otherwise take all such actions as may be required so that it no longer has access to any of the Evaluation Material. The obligations of confidentiality and secrecy contained in this Agreement shall continue to apply to the Reviewer and be binding and enforceable upon the Reviewer following the return to Owner of the Evaluation Material.
8. Remedies. Reviewer acknowledges that if the provisions of this Agreement are breached, monetary damages alone will not be sufficient and Owner shall be entitled to equitable relief, including an injunction without proof of actual damages. In addition, if the provisions of this Agreement are breached by Reviewer or anyone given access to the Evaluation Material by or through Reviewer, Reviewer agrees to indemnify and hold harmless Owner and its trustees, members, managers, beneficiaries, employees, agents and servicers (“Owner Related Parties”), from and against any resulting loss, cost, damage or expense undertaken, paid, awarded, assessed, incurred or suffered by Owner and Owner Related Parties. Reviewer shall be liable to Owner and Owner Related Parties for all court costs, attorneys’ fees and other expenses incurred by Owner and Owner Related Parties in enforcing Owner’s rights under this Agreement, recovering damages and/or obtaining other appropriate relief.
9. Release. Reviewer acknowledges and understands that some items in the Evaluation Material have been prepared by parties other than the Owner. Owner makes no representation or warranty whatsoever, express or implied, as to the completeness, content or accuracy of the Evaluation Material. Reviewer specifically releases Owner and Owner Related Parties from all claims, demands, causes of action, judgments, losses, damages, liabilities, costs and expenses (including attorneys’ fees whether suit is instituted or not), whether known or unknown, liquidated or contingent asserted against or incurred by Reviewer by reason of the information contained in, or that should have been contained in the Evaluation Material, however, the foregoing shall not apply to any claims resulting from any intentional misstatements or willful misconduct by Owner or Owner Related Parties.
10. Controlling Laws. This Agreement and all controversies arising from or relating to perform under this Agreement shall be deemed to be made in and shall be governed by and enforceable in accordance with the laws of the State of Georgia, notwithstanding conflict of laws rules. Reviewer hereby irrevocably and unconditionally submits to the exclusive jurisdiction of any State or Federal court sitting in [GA ] over any suit, action, or proceeding arising out of or relating to this Agreement and irrevocably and unconditionally waives any objection to the laying of venue of any such suit, action or proceeding.
11. Entire Agreement. This Agreement contains the entire agreement between Reviewer and Owner concerning the subject matter hereof, and no modification of this Agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by Owner and Reviewer.
IN WITNESS WHEREOF, this Agreement has been executed effective as of 11/18/2018.
Exhibit A
The Real Property located at:
Independence Place
1300 Independence Place Drive
Hinesville, GA 31313
