If you are party to an executed letter agreement (the “Agreement”) with Lument Structured Finance, LLC, Lument Services of California, Inc. or Lument Real Estate Capital, LLC or any of their respective affiliates (such entity being referred to herein as “Lument”) that incorporates “Real Estate Capital Markets Terms and Conditions,” the following terms and conditions (the “General Terms”) apply to, and are deemed to be incorporated into, such Agreement and all matters relating thereto. Each capitalized term used in these General Terms and not otherwise defined herein will have the meaning given to such term in the Agreement. These General Terms expressly survive any expiration or termination of the Agreement.
- Lument’s Role. The Company acknowledges and agrees that (a) Lument is not an agent of, or fiduciary for, the Company, (b) Lument does not make any representation or warranty regarding the Debt, including without limitation that any Debt can be obtained, and (c) Lument is not providing any services as a mortgage lender or servicer and has no obligation or liability regarding the Debt or the acts or omissions of any party providing Debt.
- No Representations. Any analysis, valuation appraisal or other reports prepared by Lument regarding the Debt, Project or otherwise are hereby acknowledged by the Company as estimates only and will not constitute a representation, warranty, covenant or guaranty, either express or implied, regarding future events.
- Information Accuracy and Sharing. The Company represents and warrants to Lument that all information it provides to Lument is true, correct and complete. The Company acknowledges that Lument may share such information with third parties for the purposes contemplated hereunder, including without limitation, for purposes of pursuing Debt opportunities.
- No Securities. Lument and the Company agree that nothing described in the Agreement will involve the offer, purchase or sale of any securities.
- Other Business Relationships. The Company acknowledges and agrees, on behalf of itself and its affiliates and each of their respective officers, directors, employees, agents, advisors, partners, accountants, attorneys and consultants (collectively the “Representatives” and collectively with the Company, the “Company Parties”), that (a) Lument or affiliates of Lument (collectively, the “Lument Parties”) may provide financing or other services to the Company Parties or parties potentially adverse to the Company Parties (the “Lument Services”) relating to the Project, the Debt or other matters described in the Agreement, and the Lument Parties may receive compensation for such financing or services; (b) each Company Party, hereby waives any conflict of interest that arises from or with regard to the Lument Services and consents to the sharing of information relating to the Lument Services, this Agreement, the Project, the Debt and the Company Parties among the Lument Parties, their respective affiliates and each of their respective officers, directors, employees, agents, advisors, partners, investors, funding sources, accountants, attorneys and consultants, including information that may otherwise be deemed proprietary, confidential or material, non-public information; and (c) none of the Lument Parties, nor any of their respective affiliates or Representatives, will have any liability to the Company Parties as a result of such actions. To the extent of any conflict between the foregoing and any other agreement between the Lument Parties and the Company Parties, the terms of this Section will control.
- Advertisements. The Company agrees that Lument may, at Lument’s expense, place announcements and advertisements in such newspapers, periodicals and electronic media as it may choose, stating that Lument has provided activities to the Company in connection with the Project or Debt, subject to the Company’s option to review and approve such announcement in advance, such approval not to be unreasonably withheld.
- Notices. Notice to either party must be made in writing either in hard copy or electronic format and delivered to the address(es) set forth on the signature page(s) of the Agreement and will be deemed to have been given for all purposes (a) when received, if hand-delivered or sent prepaid by a reputable international courier service, (b) five business days after mailing, if mailed by first class certified or registered mail, postage prepaid and return receipt requested, or (c) when sent by email, upon receipt by the sending party of written confirmation by the receiving party; provided, however that an automated email confirmation of delivery or read receipt will not constitute such confirmation.
- Miscellaneous.
- a. The Agreement contains the entire agreement of the parties thereto and replaces any prior agreements or understandings with respect to the subject matter thereof. The Agreement may not be changed, amended or modified except by an instrument in writing signed by all of the parties thereto. The Agreement will inure to the benefit of and be binding upon the parties thereto and their respective successors and assigns; provided, however, the Agreement may not be assigned by the Company without the prior written consent of Lument. If any part, term or provision of the Agreement is held to be illegal, in conflict with any law or otherwise invalid, the remaining portion or portions will be considered severable and not be affected by such determination, and the rights and obligations of the parties will be construed and enforced as if the Agreement did not contain the particular part, term or provisions held to be illegal or invalid.
- b. The Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of law provisions thereof. The Company agrees that all actions or proceedings arising in connection with the Agreement will be tried and litigated only in the state and federal courts located in the county of New York, state of New York and consent to venue and jurisdiction in those courts. The Company waives any right it may have to assert the doctrine of forum non conveniens or to object to such jurisdiction or venue and hereby consents to any court ordered relief. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the Agreement.
- c. Captions and headings are for convenience purposes only and will not be used to interpret, limit or define the scope or intent of any provision of the Agreement.
