CONFIDENTIALITY AGREEMENT AND AGENCY DISCLOSURE
The undersigned " Registered Potential Purchaser" are interested in obtaining information regarding the property known as Superfresh – 1185 Amboy Avenue, Edison, NJ 07446 (the "Property") in order to evaluate the possible assignment of lease, lease, sublease and purchase of FF& E (the "Proposed Transaction") of the Property by Registered Potential Purchaser. The Owner of the Property has indicated that all inquiries and communications with respect to the contemplated sale of such Property be directed to Space Realty Services, LLC d/b/a “SPACE” (the "Listing Broker"). Registered Potential Purchaser acknowledges that Registered Potential Purchaser is a principal in connection with the purchase of the Property and not an agent of or acting on behalf of any other party in connection with the purchase of the Property. Registered Potential Purchaser hereby agrees that Registered Potential Purchaser will not look to SPACE or to Owner for any brokerage commission, finder’s fee, or other compensation in connection with the Proposed Transaction of the Property or sale of any interest therein. Registered Potential Purchaser acknowledges that it has not had any discussion regarding the Property with any broker or agent. Registered Potential Purchaser shall indemnify and hold Owner and SPACE and their respective officers, directors, shareholders, partners, members, employees, agents and representatives and any affiliate, successor or assign thereof (collectively, the “Owner/ SPACE Related Parties”), harmless from and against any and all claims, causes of action, damages, suits, demands, liabilities, fines, fees, costs and expenses (including, but not limited to, court costs and attorney’s fees) of any kind, nature or character relating to the Property by any agents or brokers resulting from (i) any failure by Registered Potential Purchaser or any Related Party to disclose any relationship Registered Potential Purchaser may have with respect to any broker or other intermediary, (ii) any failure by Registered Potential Purchaser to pay any amounts claimed by any broker or other intermediary (including, without limitation, any Registered Potential Purchaser’s Representative), other than SPACE, in connection with the marketing or sale of the Property and (iii) any breach or default hereunder by Registered Potential Purchaser and/or any deemed breach or default hereunder by any Related Party.
By accepting this Agreement and the Evaluation Materials (as hereinafter defined), Registered Potential Purchaser hereby agree as follows:
1. Confidentiality. Any information with respect to the Property (collectively, the "Evaluation Materials") provided to Registered Potential Purchaser by Owner, Owner's Representative and/or Listing Broker and/or any of their respective consultants, agents or employees (collectively, the "Seller Parties") will be used solely for the purpose of evaluating the possible acquisition of the Property by the undersigned Registered Potential Purchaser and will not be used or duplicated for any other purpose. The Evaluation Materials shall continue to be the property of the Owner and SPACE. The Evaluation Materials may not be copied or duplicated without the Owner's and SPACE’s prior written consent, and must be returned to SPACE (or with SPACE’s permission, destroyed by Registered Potential Purchaser and any Related Party, and in such instance Registered Potential Purchaser shall certify in writing to SPACE and Owner that such information has been so destroyed) immediately upon request or when the Registered Potential Purchaser declines to make an offer for the Property or terminates any discussions or negotiations with respect to the Property. Registered Potential Purchaser shall keep all Evaluation Materials strictly confidential; provided, however, that such Evaluation Materials may be delivered to such persons or entities who because of their involvement with the Proposed Transaction need to know such information for the purpose of giving advice with respect to, or consummating, the Proposed Transaction (all of whom are collectively referred to as "Related Parties"). Any such Related Parties shall be informed by Registered Potential Purchaser of the confidential nature of such information and shall be directed by Potential Purchaser (and Potential Purchaser shall cause such Related Parties) to keep all such information in the strictest confidence and to use such information only in connection with the Proposed Transaction and in accordance with the terms of this Agreement. Registered Potential Purchaser will not communicate with tenants, employees of the Property without the prior written consent of Owner or Owner's Representative.
2. No Disclosure. Registered Potential Purchaser shall not (i) disclose the fact that discussions or negotiations are taking place concerning the possible acquisition of the Property by Registered Potential Purchaser or any of the terms thereof, or (ii) conduct any discussions, negotiations or make any inquiries concerning the possible acquisition of the Property with any other person or entity (including tenants and employees of tenants) except for Owner, Owner's Representative and Listing Broker, except as may be expressly permitted elsewhere in this Agreement and, in such case, only in strict accordance with the provisions hereof. In the event that any Registered Potential Purchaser or Related Parties become legally compelled to disclose all or any part of the Evaluation Materials, will provide Owner's Representative with prompt written notice so that Owner may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. Registered Potential Purchaser acknowledges that damages may be inadequate to protect against breach of these provisions and therefore agrees in advance to the granting of injunctive relief as described above in Owner's favor without proof of actual damages, in addition to any other remedies available at law or in equity. In the event that such protective order or other remedy is not obtained, or that Owner waives compliance with the provisions of this Agreement, in such instance, Registered Potential Purchaser will furnish only that portion of the Evaluation Materials which is legally required and will exercise best efforts to obtain reliable assurance that confidential treatment will be accorded the Evaluation Materials. Registered Potential Purchaser shall reimburse Seller Parties for all costs and expenses, including reasonable attorneys' fees incurred by Seller Parties in successfully enforcing Potential Purchaser's obligations under this Agreement.
3. No Representations by Seller Parties. None of Seller Parties make any representations or warranties as to the accuracy or completeness of the Evaluation Materials or that actual results will conform to any projections contained therein. Owner, Owner's Representative and Listing Broker expressly disclaim any and all liability for representations or warranties, express or implied, contained in the Evaluation Materials, or in any other written, oral or other communications transmitted or made available to Registered Potential Purchaser by Seller Parties, including, without limitation, computer disks containing files with financial data, lease information, Property information or projections.
4. Withdrawal of Property from Market or Termination of Discussions. Registered Potential Purchaser acknowledges that the Property has been offered for sale subject to withdrawal of the Property from the market at any time or rejection of any offer because of the terms thereof, or for any other reason whatsoever, without notice, as well as the termination of discussions with any party at any time without notice for any reason whatsoever. Owner is under no legal obligation of any kind whatsoever with respect to the Proposed Transaction by virtue of this Agreement, the delivery of any Evaluation Materials, any discussions concerning the Proposed Transaction or otherwise, unless and until a binding written agreement is executed and delivered by all parties thereto.
5. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, which is applicable to contracts made and to be performed wholly within New Jersey.
Listing Broker:
David Brecher
SPACE
Robert Capatina
SPACE
Candis Lai
SPACE