Douglas Wilson Companies, Inc., (“DWC”) is an affiliate of the court-appointed receiver, Douglas P. Wilson (“Receiver”), of certain portions of the developments known as “Cascades at Southern Hills,” “Seasons at Traditions” and “The Townhomes at San Simeon” (the “Property”) and located in Hernando County, St. Lucie County and Lee County, Florida, in the pending foreclosure suits (the “Foreclosure Suits”) instituted by KeyBank, National Association, as lender (“KeyBank”), against Levitt and Sons of Hernando County, LLC, Levitt and Sons at Tradition, LLC and Levitt and Sons of Lee County, LLC, as owners of the Property and debtors (“Levitt”).
The Confidential Marketing Materials (the “Materials”) are considered confidential, are provided for informational and discussion purposes only, and are subject to the Confidentiality Agreement you previously executed. Any individual, by accessing the Materials, represents and acknowledges that it is either a principal of a business entity, an investment advisor with clients contemplating a transaction involving the Property or a Representative (as defined in the Confidentiality Agreement) thereof (hereinafter referred to collectively as “prospective purchaser” or “prospective purchasers”) and is requesting to view the Materials only in connection with the possible acquisition of (i) the Property if and when KeyBank obtains title after the issuance of the final judgments of foreclosure in the Foreclosure Suits (“Purchase of Titles”), (ii) the notes and mortgages held by KeyBank secured by the Property (“Purchase of Loans”) or (iii) the final judgments if and when obtained by KeyBank in the Foreclosure Suits (“Purchase of Judgments”) (hereinafter the Purchase of Titles, Purchase of Loans and Purchase of Judgments are referred to collectively as the “Proposed Transaction”). If the recipient is an investment advisor, then the recipient shall immediately provide a complete copy of this Disclaimer to the principal(s) of its client, which client will be deemed to be a “prospective purchaser” for the purposes of this Disclaimer and will be bound by the terms hereof.
The Materials are presented strictly for the exclusive use of the prospective purchasers to determine whether the prospective purchasers wish to express any further interest in the Proposed Transaction. DWC reserves the absolute right to continue to solicit offers from and negotiate with other prospective purchasers, including the right to solicit back-up offers after entering a purchase agreement or escrow instructions, subject to the terms of any purchase agreement, escrow instructions or court order.
DWC is allowing access to the Materials to the prospective purchaser in consideration for the prospective purchaser’s agreement to abide by the covenants and provisions set forth in this Disclaimer and the Confidentiality Agreement. Access to the Materials by the prospective purchaser constitutes its acceptance and agreement to the provisions set forth in this Disclaimer and the Confidentiality Agreement.
COMMUNICATIONS SHALL BE DIRECTED TO DWC: All inquiries and communications with respect to the Proposed Transaction should be directed to DWC, not KeyBank or Levitt. Prospective purchasers acknowledge that DWC is an affiliate of Receiver, who is acting on behalf of the court as the receiver in the Foreclosure Suits.
COMPLETENESS & ACCURACY OF INFORMATION: Neither DWC nor Receiver makes any representation or warranty, express or implied, as to the accuracy or completeness of the Materials and will have no liability for any loss or injury arising out of or caused in whole or part by the acts, errors or omissions of DWC or Receiver, whether negligent or otherwise, in procuring, compiling, gathering, formatting, interpreting, reporting, communicating or delivering the information contained in the Materials. The Materials only contain selected information and do not purport to provide a complete and accurate summary of all aspects of the Proposed Transaction, including any information regarding the financial, operational or physical aspects of the Property. The Materials do not purport to be all-inclusive or to contain all information which prospective purchasers may reasonably need or desire in order to properly evaluate the Proposed Transaction. Furthermore, the Materials are not and shall not be interpreted or deemed an indication of the condition or state of affairs of the Property or the Foreclosure Suits, and it shall not be implied or construed that there has not been any change in the condition or affairs of the Property or the Foreclosure Suits since the date the Materials were prepared. Neither DWC nor Receiver is under any obligation to update, modify or revise the Materials or to notify prospective purchasers of any updates, modifications or revisions. The Materials may contain certain documents which may be described in summary form. The summaries do not purport to be complete or necessarily accurate descriptions of the full documents or constitute a legal or financial analysis of the provisions of the documents. Prospective purchasers should independently review all of the Materials.
ANALYSIS & PROJECTIONS: Any and all information included in the Materials or otherwise provided by DWC or Receiver to any prospective purchaser is provided without any representation, warranty, or assurance, express or implied, regarding the accuracy, completeness, current status or applicability of such information. Prospective purchasers shall perform and will only rely on their own investigation, analysis, estimates, and projections in connection with any and all aspects of the Proposed Transaction, including, but not limited to, operational and financial aspects, legal issues, municipal and governmental matters, environmental and physical issues and any and all other matters concerning the Property and the Proposed Transaction. Prospective purchasers shall conduct or undertake such investigations and reviews and make such inquiries as they may believe to be necessary, appropriate, advisable, or reasonable for the purpose of evaluating the Proposed Transaction.
REPRESENTATIONS & WARRANTIES: DWC and Receiver and their respective officers, directors, employees, partners, affiliates, agents, contractors, successors and assigns disclaim any and all liability for any representation or warranty, express or implied, set forth in or omitted from the Materials or any other written or oral communications or documents transmitted or made available to any prospective purchaser, and neither DWC nor Receiver shall be liable to any prospective purchaser or any third party for any direct, indirect, consequential, incidental or special damages, whether foreseeable or not and however caused, arising out of or resulting from the Materials. Neither DWC nor or any other person or entity, including Reciever, is authorized to make any representations, warranties, or agreements on behalf of KeyBank or Levitt regarding any aspect of the Proposed Transaction, including, but not limited to, the operational, financial or physical conditions of the Property or zoning or governmental regulations concerning the Property. Prospective purchasers shall not rely on any oral or written representations made by DWC or Receiver concerning the Proposed Transaction, the Property or the Foreclosure Suits. Prospective purchasers may only rely on the representation and warranties, if any, set forth in a written purchase agreement, escrow instructions, or other written agreement or document signed and/or given directly to the prospective purchaser by KeyBank. Prospective purchasers shall indemnify, defend and hold harmless DWC, Receiver and their respective officers, directors, employees, partners, affiliates, agents, contractors, successors and assigns from and against any and all claims, actions, cause of action, lawsuits, judgments, obligations, damages, losses, liabilities, costs and expenditures (including reasonable attorney’s fees) which may be incurred by reason of or result from or arise out of or concern in any way any unauthorized use of or disclosure to third parties of the Materials or the prospective purchaser’s breach of the terms of this Disclaimer or the Confidentiality Agreement.
ENVIRONMENTAL LAWS: Various laws and regulations have been enacted by federal, state and local governments dealing with the use, storage, handling, removal, transport and disposal of hazardous or toxic wastes and substances. It is essential that all parties to real estate transactions be aware of the health, liability, and economic impact of environmental factors concerning real estate. Accordingly, prospective purchasers are urged to retain qualified professionals to determine whether hazardous or toxic wastes or substances (such as mold, asbestos, PCB’s, other contaminants or petrochemical products) or other undesirable materials or conditions are present at the Property, and if so, whether any health danger or other liability exists. It would be prudent for prospective purchasers to retain environmental experts to conduct site investigations and/or building inspections. Legal counsel and technical experts should be consulted regarding these issues.
INVESTIGATIONS & INSPECTIONS: Prospective purchasers may only inspect the Property after receipt of written authorization from DWC or Receiver. In no event shall any prospective purchaser or any of its agents or contractors contact any governmental authority concerning the Property or the Proposed Transaction, or make any physical inspection or testing of the Property, without the prior written consent of DWC or Receiver.
BROKERAGE: The prospective purchaser agrees that it will not look to DWC, Reciever or any of their affiliates for the payment of any fees or commissions in connection with the Proposed Transaction. The prospective purchaser also hereby acknowledges that it has not dealt with any broker regarding the Proposed Transaction, or if it has, the prospective purchaser shall indemnify, defend, and hold harmless DWC, Receiver and their respective officers, directors, employees, partners, affiliates, agents, contractors, successors and assigns from and against any and all claims, actions, cause of action, lawsuits, judgments, obligations, damages, losses, liabilities, costs and expenditures (including reasonable attorney’s fees) which may be incurred by reason of or result from or arise out of or concern in any way any claim or claims by any broker, finder, agent, or other person or entity for commissions, fees, or other compensation for bringing about any actual or proposed transaction with respect to the Property if such claim or claims based in whole or in part on dealings with the prospective purchaser or any of the prospective purchaser’s representatives.
NON-BINDING NEGOTIATIONS: The Materials are intended solely for the prospective purchaser’s own limited use in considering whether to pursue negotiations to enter into a definitive agreement regarding the Proposed Transaction. DWC and Receiver expressly reserve the right, in their sole and absolute discretion, to reject any and all expressions of interest or offers regarding the Proposed Transaction and/or to terminate discussions with any prospective purchaser at any time with or without notice. Access to the Materials does not constitute an offer, agreement or any other contractual obligation to complete the Proposed Transaction. KeyBank shall not have any legal commitment, obligation, or liability to any prospective purchaser who receives and reviews the Materials or makes an offer regarding the Proposed Transaction, unless and until a formal written agreement for the Proposed Transaction has been executed and fully approved by KeyBank, its legal counsel and the court, if applicable, and any conditions precedent to KeyBank’s obligations thereunder have been satisfied or waived. Prospective purchasers understand and agree that neither DWC nor Receiver makes any representation that access to the Materials will result a purchase agreement, escrow instructions, or any other definitive agreement concerning the Proposed Transaction.
RETURN OF DOCUMENTS: If either party notifies the other party that the negotiations regarding the Proposed Transaction are terminated, the prospective purchaser will be denied further access to the Materials and shall destroy or return any Materials in the prospective purchaser’s possession (whether in hard copy, stored on electronic, magnetic or other media or otherwise) and the prospective purchasers shall provide DWC and/or Receiver with an affidavit to this effect within (5) days after receipt of request for such affidavit. In addition, the prospective purchaser shall concurrently deliver to DWC (at no cost to DWC or Receiver) copies of any reports or surveys prepared by or on behalf of the prospective purchaser concerning the Proposed Transaction.
Prospective purchasers shall not attempt to download, scan, copy, print or otherwise capture any of the Materials, except for those for which the capability to print or download has been enabled, and shall not attempt to circumvent any security features or allow others to access the Materials using the prospective purchaser’s rights of access.
COPYING OR OTHER DUPLICATION OR DISCLOSURE OF ANY OF THE CONTENTS OF THE MATERIALS IS NOT AUTHORIZED AND IS EXPRESSLY PROHIBITED, EXCEPT AS EXPRESSLY PROVIDED BY SEPARATE AGREEMENT.
INTERPRETATION: This Disclaimer states the entire agreement between the parties concerning the subject matter herein. All prior oral or written representations or agreements originating before the date of this Disclaimer regarding the subject matter hereof not embodied herein shall not be of any force or effect, except for the Confidentiality Agreement. Any modification or waiver hereunder must be in a writing signed by DWC and Receiver. Any oral representations or modifications concerning this Disclaimer or any course of conduct, dealings, or practice between the parties which varies from the terms hereof shall not be deemed a wavier of any rights contained herein unless contained in a subsequent writing signed by DWC and Receiver. If any provision or the application of any of the terms of this Disclaimer to any person or circumstance shall to any extent be invalid or unenforceable, the remaining provisions hereof shall not be affected thereby. The rights and obligations of the parties shall inure to the benefit of and shall be binding on their successors-in-interest.
I agree with general terms and conditions
