Agreement
CONFIDENTIALITY AND NON-CIRCUMVENTION AGREEMENT
Regarding review of marketing materials distributed by Open Market CRE
This Confidentiality and Non-Circumvention Agreement (this “Agreement”) is entered into as of the date and time the Recipient electronically accepts this Agreement as described in Section 8 below (the “Effective Date”), by and between Open Market CRE (“Broker”), acting as the exclusive listing advisor to the owner of the property described in the applicable Investment Offering Memorandum, marketing brief, or other marketing materials (collectively, the “Marketing Materials,” the owner being the “Seller,” and the property being the “Property”), and the party requesting access to the Marketing Materials and electronically accepting this Agreement (“Recipient”). Broker, Seller, and Recipient are each a “Party” and collectively the “Parties.” Seller and any tenants of the Property are intended third-party beneficiaries of this Agreement and may enforce it directly.
1. Confidential Information
“Confidential Information” means the Marketing Materials and all information contained in or derived from them, including but not limited to financial statements, operating data, rent rolls, lease abstracts, tenant and vendor information, projections, pro formas, valuations, photographs, plans, environmental or engineering reports, and any other non-public information concerning the Property, the Seller, or the Seller’s tenants that is furnished to Recipient by Broker or Seller, whether in writing, electronically, orally, or by inspection, together with all analyses, compilations, summaries, or other materials prepared by Recipient or its Representatives that contain or reflect such information.
2. Confidentiality Obligations
Recipient agrees that it shall:
(a) hold the Confidential Information in strict confidence, using at least the same degree of care it uses to protect its own confidential information of similar importance, and in no event less than a reasonable degree of care;
(b) use the Confidential Information solely to evaluate a potential acquisition of, or investment in, the Property (the “Permitted Purpose”), and for no other purpose;
(c) not disclose, publish, photocopy, duplicate, or otherwise reproduce the Confidential Information, in whole or in part, to any person or entity other than Recipient’s officers, directors, employees, legal counsel, lenders, accountants, and other professional advisors who have a bona fide need to know the Confidential Information for the Permitted Purpose (“Representatives”), and who have first agreed in writing, or are otherwise bound, to confidentiality obligations at least as protective as those in this Agreement; Recipient shall be responsible for any breach of this Agreement by its Representatives;
(d) not disclose to any person, without Broker’s and Seller’s prior written consent, the fact that discussions or negotiations concerning the Property are taking place, or any of the terms, conditions, or other facts relating to a potential transaction, including the status thereof;
(e) not use the Confidential Information, or any information derived from it, in any manner detrimental to the interests of Seller, Seller’s tenants, or Broker; and
(f) upon Broker’s or Seller’s written request, or upon Recipient’s determination not to pursue the Permitted Purpose, promptly return or destroy (with destruction certified in writing if requested) all copies of the Confidential Information in Recipient’s or its Representatives’ possession, except that Recipient’s legal counsel may retain one archival copy solely as required by law or bona fide internal compliance policy, subject to the continuing confidentiality obligations of this Agreement.
3. Non-Circumvention and Non-Solicitation
In consideration of Broker furnishing the Confidential Information, and recognizing that Broker is the exclusive representative for the Seller, Recipient agrees that, for the Restricted Period defined in Section 4 below, Recipient shall not, and shall cause its Representatives, affiliates, and assigns not to, directly or indirectly:
(a) contact, solicit, negotiate with, or enter into any agreement with Seller, any affiliate of Seller, any tenant of the Property, or any other owner, principal, lender, or party identified through or introduced by the Confidential Information, regarding the acquisition, financing, leasing, or management of the Property, except through Broker;
(b) circumvent, avoid, or bypass Broker in any manner for the purpose of avoiding payment of any commission, fee, or other compensation that would otherwise be owed to Broker in connection with a transaction involving the Property;
(c) induce or attempt to induce Seller or any tenant of the Property to terminate, reduce, or adversely modify its relationship with Broker; or
(d) assist, encourage, or act in concert with any third party to do any of the foregoing.
This Section survives regardless of whether Recipient ultimately acquires the Property, and applies whether or not a transaction is consummated. Nothing in this Agreement obligates Seller or Broker to continue discussions with Recipient, and no commission or fee is owed by Seller or Broker to Recipient in connection with the Property under any circumstance except as provided by Broker on a deal by deal basis.
4. Term
Recipient’s confidentiality obligations under Section 2 shall remain in effect for the later of (i) two (2) years from the Effective Date, or (ii) until Seller no longer owns the Property. Recipient’s non-circumvention and non-solicitation obligations under Section 3 (the “Restricted Period”) shall remain in effect for two (2) years from the Effective Date, regardless of any earlier termination of discussions between the Parties. Sections 2, 3, 5, 6, and 7 survive termination or expiration of this Agreement to the extent stated.
5. No Representation or Warranty; No Reliance
The Marketing Materials have been obtained from sources believed to be reliable; however, Broker and Seller make no representation or warranty, express or implied, as to the accuracy or completeness of the Marketing Materials or any information contained therein, including any financial projections, and disclaim all liability for any inaccuracies or omissions. Recipient acknowledges that all projections are estimates based on assumptions regarding the general economy, competition, and other factors beyond the control of Seller and Broker, and are therefore subject to material variation. Recipient is solely responsible for independently verifying all information material to its decision to pursue the Permitted Purpose, and shall not rely on the Marketing Materials as a promise or representation of the Property’s future performance. Seller and Broker each expressly reserve the right, in their sole discretion, to reject any offer or expression of interest and to terminate discussions with Recipient at any time, with or without notice, and neither Seller nor Broker shall have any obligation to Recipient unless and until a definitive written purchase agreement has been fully executed and delivered by Seller and any conditions to Seller’s obligations thereunder have been satisfied or waived.
6. Remedies
Recipient acknowledges that any breach of Section 2 or Section 3 of this Agreement would cause Broker and Seller irreparable harm for which monetary damages alone would be an inadequate remedy. Accordingly, in addition to any other rights or remedies available at law or in equity, Broker and Seller shall each be entitled to seek injunctive relief and specific performance to enforce this Agreement, without the necessity of posting a bond and without the necessity of proving actual damages. The prevailing Party in any action to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing Party.
