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Confidentiality and Non-Solicitation Agreement

This Agreement dated _______________ is entered into between Fortune Companies Management Corp. on behalf of the ownership of the Property (“Owner”) and the undersigned potential purchaser (“Purchaser”) as it pertains to __________________________________ in the city of_______________ and the state of ____  (“the Property”).  Purchaser may be interested in a possible purchase of the of the Property (the “Transaction”), and has requested that Owner provide Purchaser with certain information concerning the Property.  In consideration of Purchaser’s receipt of any and all information concerning the Property of any kind whatsoever, in any format whatsoever, whether oral or written, but excluding any information that is a matter of public record or is provided by other sources readily available to the public (the “Confidential Information”), Purchaser agrees as follows:

  1. All Confidential Information relating to the Property, which may be furnished to Purchaser and/or any Related Parties (as defined below), shall continue to be the property of Owner.  The Confidential Information will not be used or duplicated by Purchaser for any purpose other than evaluating the Transaction.  Purchaser and all “Related Parties” (as defined below) will keep in strict confidence, and will not disclose the contents of, or Purchasers’ or any Related Party’s analysis of the contents of, any Confidential Information, or the content of any appraisal, engineering, environmental or other third party report prepared on behalf of Purchaser with respect to the Property, other than (a) to affiliates, agents, accountants, attorneys and other consultants and their respective employees, partners, officers and managers, who are involved in the ordinary course of business with the Transaction and to prospective investors and lenders (collectively, the “Related Parties”); (b) in response to lawful process or subpoena or other valid or enforceable order of a court of competent jurisdiction; and (c) in any filings with governmental authorities require by reason of the Transaction.

  2. Purchaser will cause all Related Parties to which the Transaction is disclosed, or any Confidential Information made available, to agree to be bound by the terms of this Agreement.  Purchaser will be responsible for any breach of this Agreement by any of its representatives, agents or brokers, including all Related Parties.

  3. At any time upon the written request of Owner, and/or when discussions/negotiations regarding the Transaction are terminated, and/or when Purchaser declines to make an offer for the Property, but in no event more than 60 days after the date of this letter, Purchaser must return to Owner, or destroy, the Informational Material.  Such return or destruction must occur within five (5) business days after Owner’s request.  If Purchaser elects to destroy the Confidential Information, then such destruction must be certified to in writing and such certification delivered to Owner within such five (5) business day. Thereafter, Potential Buyer and Related Parties will still continue to be bound by the terms of this Confidential Agreement.

  4. Neither Purchaser, nor any Related Parties, shall directly or indirectly communicate with any tenants, property manager, leasing agents, service contractors, lien holders or other parties with any interest in or contractual relationship to the Property, except in the ordinary course of business unrelated to the Transaction.  Purchaser shall not contact any governmental authority regarding the Property without the prior written consent of Owner.

  5. Purchaser and Related Parties are not entitled to rely on the accuracy or completeness of the Information Materials, and further agree to rely solely on their own due diligence, independent investigation, analysis appraisal and evaluation of the facts and circumstances in determining wither to make an offer, or to purchase the Property.  Although Owner has endeavored to include in the Confidential Information, information which it believes to be relevant to the purpose of Purchaser’s investigation, Purchaser understands and acknowledges that neither the Owner, nor its representatives, make any representation or warranty as to the accuracy or completeness of the Confidential Information.  Purchaser further understands and acknowledges that information used in the preparation of the Confidential Information was furnished to Owner, and/or its representatives, by other parties and has not been independently verified by Owner or its representatives, and is not guaranteed as to completeness or accuracy.  Purchaser agrees that neither Owner, nor its representatives, shall have any liability for any reason to Purchaser, any of its representatives, or Related Parties, resulting from use of the Confidential Information by any person in connection with the sale of, or other investment by Purchaser in the Property, whether or not consummated for any reason.

  6. Owner is under no obligation to sell the Property, and nothing in this agreement shall be deemed a sale or offer of sale, joint venture and/or development.  The Property is subject to withdrawal from the market, or rejection of any offer for any reason whatsoever, without notice, at Owner’s sole discretion.  For the purposes of this Agreement, the term “purchase” or “sale” of the Property, or similar language, shall be deemed to refer to the purchase or sale of all, or a portion, of the Property, or any interest or sale/leaseback thereof.

  7. Under no circumstances will Owner providing Confidential Information to Purchaser obligate Owner to pay any commission to any broker or agent.  Any commission owed to Purchaser’s broker or agent in connection with the Transaction will be paid by Purchaser, outside of escrow, unless otherwise agreed to by Owner in a separate written agreement signed by owner and broker/agent.

  8. Purchaser’s broker (“Broker”), if any, shall be considered a Related Party, will also execute this Agreement where indicated below, and agrees not to disclose any confidential information, including but not limited to, the Offering Memorandum and any analysis contained therein, to any other entity.  Purchaser’s Broker hereby acknowledges that it is bound by each and every paragraph above, but does not possess the privileges conferred to provide access to the Confidential Information to any prospective buyers or other Related Parties, including directors, officers, employees, affiliates, advisers, partners, employees, legal counsel, and institutional lenders.

  9. Purchaser hereby represents and warrants to Owner and its representatives that Purchaser has not dealt with any other representative or broker of Owner, and that no broker represents, or will represent, Purchaser in connection with any possible sale or other transaction concerning the Property other than Broker.  Purchaser agrees to indemnify and hold harmless Owner and its representatives, successors and assigns, from and against any and all claims, demands, losses, liabilities, suits, costs, or expenses due to or arising from any claims of a broker, finder, or other agent for commissions, fees, or other compensation in connection with any possible sale or transaction concerning the Property based on alleged dealings with the Purchaser, apart from Broker.

  10. In the event of any breach of this Agreement by Purchaser or its Related Parties, Owner will be irreparably and immediately harmed and cannot be made whole solely by monetary damages.  Accordingly, it is agreed that, without prejudice to any rights and remedies otherwise available, Owner shall be entitled to equitable relief by way of injunction, and to compel specific performance, without the need for proof of actual damages. Purchaser agrees to indemnify Owner for all losses, claims, damages, costs and expenses, including reasonable attorney’s fees, that Owner may incur or suffer in connection with any breach of this Agreement and/or its enforcement.

  11. This Agreement shall remain in effect until two (2) years after the date of Purchaser’s acceptance of this Agreement, and shall be governed by and construed in accordance with the laws of the State of California.

  12. This Agreement contains the entire understanding between the parties with respect to the subject matter hereof, and may not be altered, varied, revised or amended, except by an instrument in writing signed by the parties subsequent to the date of this Agreement.

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