CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (“Agreement”) is made as of the below “Effective Date”, by and between Marcus & Millichap Real Estate Investment Services of California, Inc. (”Marcus & Millichap”), a California corporation, and “Potential Purchaser” and “Potential Purchaser Broker”.
RECITALS
A. Potential Purchaser is interested in acquiring a property located at:
2100 and 2180 Lynn Rd., Thousand Oaks, CA 91360 (“Proposed Transaction” or “Proposed Transactions”).
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Marcus & Millichap and Potential Purchaser agree as follows:
1. Definition of “Confidential Information.” “Confidential Information” means any and all information, in any form or medium, whether written or oral, concerning or relating to a Proposed Transaction including, without limitation, information relating to the location, ownership, income, expenses, listing price, tenants, leases, loans, financing, mortgages, surveys, reports, inspections, analyses, abstracts, compilations, forecasts, market studies, drawings, designs, diagrams, specifications, and plans.
2. Confidentiality. Potential Purchaser agrees that any and all Confidential Information received by it shall be kept strictly confidential, whether furnished before or after the date hereof, whether furnished orally, electronically or in written or hard copy form, whether or not marked “Confidential” and regardless of the manner in which it is furnished, and shall not be disclosed to any person without Marcus & Millichap’s and/or the seller’s prior written consent, which consent may be granted or withheld in Marcus & Millichap’s or seller’s sole and absolute discretion. Potential Purchaser will take all reasonable measures to protect the secrecy, confidentiality, and integrity of the Confidential Information, and to avoid unauthorized disclosure and use of Confidential Information.
3. DISCLAIMERS. POTENTIAL PURCHASER ACKNOWLEDGES AND AGREES THAT: (A) MARCUS & MILLICHAP, ITS REPRESENTATIVES AND SALESPERSONS HAVE MADE NO REPRESENTATIONS REGARDING THE ACCURACY OR COMPLETENESS OF CONFIDENTIAL INFORMATION, THE DOCUMENTS DELIVERED OR TO BE DELIVERED IN CONNECTION WITH THE PROPOSED TRANSACTIONS, OR ANY DUE DILIGENCE OR OTHER INFORMATION PROVIDED BY MARCUS & MILLICHAP, SELLER OR ANY OTHER PARTY.
4. Dispute Resolution. This Agreement shall be interpreted, construed and governed by and in accordance with the laws of the State of California. Any controversy or claim arising out of or relating to this Agreement or any Proposed Transaction purchased by Potential Purchaser shall be settled by final binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules before a single arbitrator sitting in Ventura County and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The AAA’s administrative fees and charges shall be paid equally by the parties as they become due, provided that the arbitrator shall award the prevailing Party its costs and expenses as provided in this Agreement. Notwithstanding the applicability of any other law to this Agreement, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., shall apply to the construction and interpretation of this arbitration clause. This Paragraph 7 “Dispute Resolution” agreement between Marcus & Millichap and Potential Purchaser shall survive the termination of the Agreement.
5. Successors and Assigns. This Agreement shall be binding on and shall inure to the benefit of the Parties hereto and their successors and assigns.
6. Costs and Attorneys’ Fees. In any litigation, arbitration or other legal proceeding which may arise between any of the Parties, the prevailing party shall be entitled to recover its costs and expenses including, without limitation, reasonable attorneys’ fees, in addition to any other relief to which such Party may be entitled.
7. Entire Agreement; Modifications. This Agreement constitutes the full and complete understanding between the Parties and supersedes all prior agreements, arrangements, and understandings, whether oral or written, between the Parties relating to the subject matter hereof.
8. Amendments. This Agreement may not be altered, amended or modified in any way except by written instrument executed by each of the Parties.
9. Counterparts. This Agreement may be executed in two or more counterparts, the originals (or electronic or facsimile transmissions of such originals) of which, taken together, shall constitute one instrument.
10. Waiver. No waiver of any provision of this Agreement by any Party shall (i) be effective unless in writing signed by the Party against which it is asserted, or (ii) constitute a waiver of any other provision.
11. Construction. This Agreement shall be deemed to have been jointly drafted and shall construed without regard to any presumption or other rule of law requiring construction against the Party who caused it to be drafted.
12. Authority. The persons signing this Agreement represents that they are fully authorized to enter into this Agreement and to legally bind the Parties hereto.
13. Headings. The Headings in this Agreement are for reference only and shall be disregarded in construing the Agreement’s meaning and intent.
IN WITNESS WHEREOF, the Parties have executed this Agreement and caused their names to be signed hereto by their duly authorized representatives as of the Effective Date.
MARCUS & MILLICHAP
By: Ryan Rothstein-Serling
First VP Investments
By: Gary Cohen
First VP Investments
By: Martin D. Agnew
Senior VP Investments
