CONFIDENTIALITY AGREEMENT
This will serve to confirm your agreement pertaining to certain material, data and information (hereinafter “Evaluation Material”), which we, the Broker and Seller, will make available to you for review in connection with a potential purchase of the business being offered by Broker and Seller.
We, the Broker and Seller, are prepared to provide you with the Evaluation Material in connection with discussions and negotiations concerning a possible transaction involving the Property, only on the condition that you treat such Evaluation Material confidentially as detailed below, and confirm certain representations to us. Therefore, as a prerequisite to us providing you with the Evaluation Material, you hereby represent and agree as follows:
1. The Evaluation Material provided to you will be used by you solely for evaluating a possible transaction exclusively for your own account as a principal in the transaction. Therefore, you agree to keep all Evaluation Material strictly confidential; provided, however, that any such Evaluation Material may be disclosed to your officers, employees, lawyers, accountants and lenders (“Representatives”) who need to know such information for the purpose of assisting you with your possible purchase of the Property. Such Representatives shall be informed by you of the confidential nature of such information, shall be directed by you to treat such information with strict confidence and shall agree to be bound by the provisions of this agreement. You are liable for any Representative’s breach of this agreement.
2. You will not, and will cause your Representatives to not, copy or duplicate the Evaluation Material (except that you may copy Evaluation Material for your Representatives). You will return, and will cause your Representatives to return, the Evaluation Material (along with all copies thereof) to us promptly if you decide not to go forward with discussions or if return is requested by us. We will have the right, in addition to any other right we may have, to obtain injunctive relief to restrain any breach or threatened breach by you or your Representatives of this agreement.
3. In addition, you agree that you will not disclose, and you will direct your Representatives who are given access to the Evaluation Material in accordance with the terms hereof not to disclose, to any person that discussions or negotiations between you and us are taking place or will take place, or any of the terms, conditions or other facts with respect to the possible acquisition of the Property.
Although we include in the Evaluation Material, information which we believe to be relevant for the purpose of helping you in your evaluation of the Property for possible purchase, you understand and acknowledge that we, the Broker and the Seller make and have made no representation or warranty to you as to the accuracy or completeness of the Evaluation Material and have made no attempt to verify the data contained therein. You agree that we, the Broker and Seller, will not have any liability to you as a result of your use of the Evaluation Material and it is understood that you are expected to perform your own studies and are responsible for such diligence investigations and inspections of the Property, including investigation of any environmental conditions, as you deem necessary or desirable and as permitted by agreement with us.
Your obligations to keep the Evaluation Material confidential shall not include information that: (a) is or becomes publicly available other than as a result of acts by you or your Representatives in breach of this agreement; or (b) based on your counsel’s advice must be disclosed pursuant to a subpoena or other court order, but only to the extent specified in such subpoena or court order; provided prior to complying with any such order you shall give written notice to us that such demand has been made upon you and to the extent not legally prohibited you shall provide us with an opportunity to contest any such direction or order.
You agree:
a. To defend, indemnify and hold each seller and Crest Real Estate Advisors, LLC and Preschool Exchange, LLC, their respective agents, officer, directors, affiliates, employees, successors and assigns harmless from and against all claims, actions, damages, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of or related to any breach of your obligations under this agreement.
b. That Seller expressly reserves the right, at its sole and absolute discretion, to withdraw the Property from the market, modify seller’s marketing plan or to reject any and all expressions of interest or offers to purchase the Property and/or to terminate discussions with any entity at any time with or without notice. Seller has no legal commitment or obligation to any entity reviewing the Evaluation Material or making any offer to purchase unless and until a written purchase and sales agreement has been executed and all obligations agreed upon have been satisfied or waived.
c. You are advised that Crest Real Estate Advisors, LLC and Preschool Exchange, LLC (“Agent –Chelsea Reue”) is acting on behalf of seller only as exclusive broker in connection with the sale of the property and/or business. Therefore, you agree to pay all brokerage commissions, finder’s fees, and other compensation to which any broker, finder, or other person may be entitled in connection with the sale/lease of the property if such claim or claims for commissions, fees or other compensation based in whole or in part on dealings with you or any of your representatives with the seller (except for commission paid to co-broker that is agreed to by seller and Crest Real Estate Advisors, LLC and Preschool Exchange, LLC compensation which is payable by sellers); and you agree to indemnify and hold harmless agent and sellers, their respective affiliates, successors and assigns, employees, officers, and directors against and from any loss, liability or expense, including reasonable attorney’s fees and expenses, arising out of or related to any claim or claims by any broker, finder or similar agent for commissions, fees or other compensation from bringing about any sale of the property to you if such claim or claims are based in whole or in part on dealings with you or any of your representatives.
d. You and/or your Representatives are not allowed to contact any employees at the Property without written approval by the Seller. Any attempt to contact employees and customers/clients at the property without such approval will be deemed a violation of this agreement, and grounds for all of Seller’s remedies set forth herein and at law or in equity.
e. Non-Circumvention. You agree not to circumvent Broker in any way that may interfere, interrupt, or impact the operation of the Practice. Furthermore, Prospective Buyer agrees to the following:
A. Not to negotiate directly with Broker’s client without the written permission of the Broker.
B. Not to negotiate, submit an offer, or attempt to enter into a contractual agreement, with the landlord, lien holder, vendor, partner, patients, or staff of the Broker’s Practices without the written permission of the Broker.
By the signatures below and execution of this agreement it is hereby agreed that You will not within 730 DAYS or two years from this date deal directly or indirectly with the SELLER without the BROKER’s (Crest Real Estate Advisors, LLC and Preschool Exchange, LLC – Agent, Chelsea Reue) written consent and should you do so and a sale, lease or other financial arrangement, is consummated, each of the signatories separately and individually and their associates confirm that any corporation, organization, firm, company or individual of which this signatory is a part to or of, member of, principal of, or agents for said association shall be jointly and severally liable for all and any damages which the BROKER may suffer, including but not limited to the compensation which would have been payable on the listed selling price, whichever is greater.
This agreement inures to the benefit of and is enforceable by Broker - Crest Real Estate Advisors, LLC and Preschool Exchange, LLC and Seller of the Property, for which marketing information has been requested.
The obligations under this agreement shall terminate upon the earlier of the second anniversary of the date of this agreement or the date of closing any transaction regarding the Property and/or Business between us.
