NON-DISCLOSURE AND FEE AGREEMENT Commercial Real Estate Asset and Seller Specific

Transcription

1 NON-DISCLOSURE AND FEE AGREEMENT Commercial Real Estate Asset and Seller Specific THIS AGREEMENT is entered into by and between, including any affiliated parties (hereafter referred to as: Party A or Proposed Buyer), and PDS Capital Management - Greg Irving, Vince Bindi (hereafter referred to as: Party B or Broker ), regarding the proposed acquisition (hereafter "Proposed Transaction") of Commercial Real Estate Assets (hereafter CRE Asset(s)) defined in Paragraph 1 below, beginning on 11/23/11 and ending on 11/23/12, or the date of closing of the Proposed Transaction, whichever occurs first. Proposed Buyer grants Broker the exclusive and irrevocable right, on the terms specified in this Agreement, to represent Proposed Buyer in Proposed Transaction. Broker will provide Proposed Buyer certain property, pricing and due diligence information regarding the CRE Asset(s), as provided to Broker by the Seller. All parties to this agreement are bound to the following terms and conditions: 1. Subject Commercial Real Estate Non-Performing Notes Portfolio (CRE Assets): The subject CRE Assets are defined in Addendum A attached, along with other CRE Asset terms and conditions that may apply. 2. Non-Disclosure: Proposed Buyer agrees all information related to CRE Asset(s) and Proposed Transaction is restricted to associates and parties that are engaged in Proposed Transaction or involved in the analytical investigation and due diligence, including outsourced professional service providers (ie: Lawyers, Accountants, Inspectors, Appraisers, Real Estate Agents/Brokers, Title Company) who may be engaged by Proposed Buyer. If Proposed Transaction is not consummated, Proposed Buyer agrees not to disclose or reveal any information (including the fact that CRE Assets are for sale) for the duration of this Agreement, to any parties outside of the parties identified in this paragraph. 3. Return of Documents: If Proposed Buyer determines not to pursue proposed Transaction, Proposed Buyer agrees to promptly return all information and documents related to CRE Assets, without retaining copies, summaries, analyses or extracts thereof. 4. Non-Circumvent: Proposed Buyer agrees not to contact any occupants of the properties of the CRE Assets. Proposed Buyer agrees that negotiations for this real estate transaction involving the subject CRE Assets, will be negotiated and transacted solely through the Brokers and that any offers, letters of intent, counter offers and purchase agreements will specifically name the Brokers as the procuring cause of the transaction. If Proposed Buyer, including any affiliated parties, were to close a transaction and acquire any of the subject CRE Assets or to participate in any loan, exchange, or other related transaction, directly or indirectly, with the Seller related to any of the subject CRE Assets, then Broker is entitled to the full Commission specified in Paragraph 5 below, during the term of this agreement. Page: 1 of 5

2 Furthermore, Proposed Buyer agrees to never contact, or attempt to contact, the Seller during this Proposed Transaction or at anytime in the future to the date of 11/23/12 without the prior agreement from Broker. From the execution date of this Agreement, to the date of 11/23/12, if the Proposed Buyer, including any affiliated parties, were to close a future transaction and acquire any future CRE Assets from the Seller or to engage in any loans, exchanges, or related transactions with the Seller, without a prior agreement with the Broker to the contrary, then Broker is entitled to the full commission compensation as specified in Paragraph 5 below. The Seller will be indentified to Proposed Buyer during the execution of their Non-Disclosure Agreement. 5. Broker Compensation: Broker compensation is to be Two and One Half Percent (2.5%). Commission shall be due and payable upon completion by Buyer or a related party of any transaction in which the Buyer or related party acquires any interest in the CRE Assets in any form or fashion. 6. Broker s Notifications: Broker recommends that Proposed Buyer select other 3 rd party professionals, of Proposed Buyers choosing, to investigate the CRE Assets through inspections, investigations, tests, surveys, reports, studies and other available information ( Inspection ) during the Due Diligence period of the transaction. Proposed Buyer agrees that these Inspections, to the extent they exceed the obligations as described herein, are not within the scope of Broker s duties. Broker informs Proposed Buyer that it is in Proposed Buyer s best interest to obtain such Inspections. Proposed Buyer acknowledges and agrees that Broker: (i) does not decide what price Proposed Buyer should pay or Seller should accept; (ii) does not guarantee the condition of the Property; (iii) does not guarantee the performance, adequacy or completeness of inspections, services, products, or repairs provided or made by Seller or others; (iv) does not have an obligation to conduct an inspection of the properties; (v) shall not be responsible for identifying defects of any CRE Assets; (vi) shall not be responsible for identifying the location of boundary lines or other items affecting title; (vii) shall not be responsible for verifying square footage, representations of others or information contained in Investigation reports, advertisements, flyers or other promotional material; (viii) shall not be responsible for providing legal or tax advice regarding any aspect of a transaction entered into by Proposed Buyer or Seller; and (ix) shall not be responsible for providing other advice or information that exceeds the knowledge, education and experience required to perform real estate broker licensed activity. Brokers recommend that Proposed Buyer seek legal, tax, insurance, title and other desired assistance from appropriate professionals. 7. Proposed Buyer Certifications and Guarantees: Proposed Buyer certifies and/or guarantees the following: Buyer, either as an Individual or as an Entity, is an Accredited Investor as defined in Rule Page: 2 of 5

3 501 of Regulation D of the U.S. Securities Act of Buyer currently possesses the required liquid cash funds in order to close, and is not going to raise funds from an outside 3 rd party in order to consummate said Proposed Transaction. Buyer will deliver to Seller and Broker, at time of PSA/LSA, a valid Proof of Funds to close, that will be in the form of a Bank Statement(s), liquidate investment fund statement, irrevocable letter of credit, or some other form/format that is acceptable to Seller and Broker. Buyer will not conduct, or attempt to conduct, a simultaneous double escrow transaction, in an attempt to flip the CRE Asset(s) /Asset to another buyer during the period of this Proposed Transaction. After the close of the said Proposed Transaction, Buyer is free to do so. 8. Remedies. In any action, proceeding or litigation between Proposed Buyer and Broker arising out of this Agreement, the prevailing party shall be entitled to reasonable attorney fees and costs. Both parties waive all rights to a trial by jury of any dispute with regard to this Agreement. 9. Authority. By their signatures below, the signatories warrant that all of the above statements and representations are made by the Parties with full legal and corporate responsibility, and that the persons executing this Agreement on behalf of the Parties are fully authorized to do so, with all necessary corporate or other resolutions having been passed and abstained, and that this Agreement shall be binding on same. ***Signatures Appear on the Following Page*** Page: 3 of 5

4 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. PARTY A Proposed Buyer: Company Name: Officer/Principal: Title: Address: Address: PARTY B Brokers: PDS Capital Management Name: Gregorio Irving Title: SVP of Investments California Office: South Pointe Dr., Ste 110 Laguna Hills, CA (949) Signed by Officer Tel: Signed by Officer Page: 4 of 5

5 Addendum A The Subject Industrial Building is 7,600 sq ft. It is located in, Gardena CA. The bank note is a 1 st trust deed. Page: 5 of 5