Unilever North American Headquarters (Zero Cash Flow)
Purchase Price: $148,445,000
Equity Requirement: $18,231,359 (14.0% over the loans)
THIS CONFIDENTIALITY AGREEMENT (this “Agreement”), is dated as of this day of __________, 2018, by and between ____________ whose business address is _______________,_______________,________ (“Recipient”) and MESIROW REALTY SALE-LEASEBACK, INC., whose business address is 353 North Clark Street, Chicago, Illinois 60654 (“MRSL”).
WHEREAS, MRSL controls a Delaware Statutory Trust (the “DST”) which owns an office building complex in Englewood Cliffs NJ which is net-leased to a subsidiary of Unilever United States Inc. (hereinafter, together with its and their parent, and affiliated entities, “Tenant”), and on which a renovation was recently completed by a third party (the “Developer”), and for which MRSL may be interested in finding investors (the “Transaction”);
WHEREAS, MRSL is willing to provide certain proprietary and confidential information to the Recipient in connection with the Transaction, but only under the terms and conditions set forth herein, and the Recipient is willing to receive such information subject to the terms and conditions set forth herein;
WHEREAS, Recipient acknowledges that STAN JOHNSON CO. (“Broker”) has been authorized to represent Recipient with respect to the Transaction and that no other party may make a claim, or request a commission be paid to it, for acting on Recipient’s behalf.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein set forth, the parties hereto agree as follows:
1. Confidential Information. MRSL may provide Confidential Information to the Recipient or the Recipient’s Representatives (defined hereafter) in accordance with the terms of this Agreement. The term "Representatives" shall mean directors, officers, investors, advisors, employees, attorneys, and accountants. For the purposes hereof, “Confidential Information” means information or material proprietary to the Developer, Tenant or MRSL pertaining to the Transaction and not generally known by persons not associated with the disclosing party, including without limitation financial information pertaining to Developer, Tenant, or the Transaction. Confidential Information includes, but is not limited to, the fact that the Transaction may be available for investment, or any other information relating to the ownership, lease or financing aspects of the Transaction or to any agreements, contracts, licenses and other information of a technical, financial or business nature relating to the Tenant, Developer, MRSL or the DST. Confidential Information also includes any information described above obtained from another party which the Tenant, Developer, DST or MRSL treats as proprietary or designates as Confidential Information, whether or not owned by the Tenant, Developer, DST or MRSL. The term “Confidential Information” does not include information which (a) is already known to the Recipient or Recipient’s Representatives prior to receipt from MRSL as evidenced by prior documentation thereof or has been independently developed by the Recipient or Recipient’s Representatives; (b) is or becomes generally available to the public other than as a result of a disclosure by a party to this Agreement or such party’s Representatives or any other party bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to a party to this Agreement or any other party with respect to such information; (c) becomes available to the Recipient or Recipient’s Representatives on a non-confidential basis from a source other than the Tenant, Developer or MRSL or any of their Representatives, provided that such source is not bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to a party to this Agreement or any other party with respect to such information; or (d) is disclosed pursuant to a requirement of a court, administrative agency or other governmental body or is disclosed pursuant to applicable law, rule or regulation.
2. Limited Purpose. The Recipient agrees that the Confidential Information will be used by it solely for the purpose of the Transaction.
3. Protection/Nondisclosure. The Recipient shall not directly or indirectly disclose, display, provide, transfer or otherwise make available all or any part of the Confidential Information to any person or entity other than its Representatives at any time without the prior consent of MRSL, which consent may be withheld in the sole discretion of MRSL. If MRSL provides such consent, the Recipient agrees to exercise all necessary steps to, and to cause such person or entity and its/their employees, agents, advisors, and representatives and other third parties, to safeguard the confidentiality of the Confidential Information and not to disclose any part of it or any information derived therefrom to any third party, and shall require such person or entity (and shall require its Representatives) and its/their employees, agents, advisors or representatives, or any other third party to whom the Recipient discloses any Confidential Information in accordance with the terms and conditions hereof, to agree to comply with the provisions of this Agreement.
4. No Contact. Recipient agrees that neither it nor its Representatives nor any persons/entity for whom consent is granted to share Confidential Information with, shall contact any officer, director, employee, shareholder, or affiliate of any other party to the Transaction, including without limitation Developer or Tenant or any lender from whom financing was obtained in connection with the Transaction, without the prior written consent of MRSL, which may be withheld in it sole discretion.
5. Destroy. The Recipient covenants and agrees to destroy all Confidential Information upon the request of MRSL. In addition, the Recipient covenants and agrees to erase, delete or destroy any notes, documents, magnetic media or other computer storage which contain any information copied or derived from the Confidential Information. Notwithstanding the foregoing, the Recipient, subject to its record retention and other regulatory obligations, shall have the right to retain one copy of the Confidential Information so long as the Recipient agrees to keep such Confidential Information in accordance with the confidentiality and other provisions of this Agreement. Recipient will not be obligated to erase the Confidential Information that is contained in an archived computer system backup that was made in accordance with their security and/or disaster recovery procedures.
6. Enforcement. Each party acknowledges and agrees that MRSL, Developer, DST and the Tenant may be irreparably damaged in the event any provision of this Agreement is not performed by the Recipient in accordance with the specific terms hereof or is otherwise breached. The Recipient agrees to be responsible for enforcing the confidentiality of the Confidential Information and agrees to take such action, legal and otherwise, to the extent necessary to prevent any disclosure of the Confidential Information. The Recipient agrees that MRSL, Developer, DST and the Tenant may be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any action instituted in any court of the United States of America or any state or territory thereof, in addition to any other remedy which MRSL, Developer, DST and the Tenant may otherwise be entitled at law or in equity. The Recipient shall reimburse MRSL, Developer, DST and the Tenant for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred by any or all of them in enforcing any of the provisions of this Agreement.
7. Termination. This Agreement and all of the terms, conditions and provisions hereof will terminate in their entirety upon the earlier to occur of (i) the date that is two (2) years from the initial date of the disclosure of any Confidential Information hereunder and (ii) the date on which DST or MRSL enters into a written agreement pertaining to the Transaction with Recipient.
a. The Recipient may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of MRSL. Any such attempt at assignment or transfer without MRSL’s prior written consent shall be void and of no force or effect.
b. If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative, or unenforceable because of the conflict of such provision with any constitution, statute, rule, or public policy or for any other reason, such circumstance shall not have the effect of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable, but this Agreement shall be reformed and construed as if such invalid, inoperative or unenforceable provision had never been contained herein and such provision reformed so that it would be valid, operative and enforceable to the maximum extent permitted to reflect the original intent of the parties hereto.
c. The parties hereto agree that this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements with respect thereto.
d. Except as provided in Section 9 hereof, this Agreement is binding upon and will inure solely to the benefit of the parties and their respective permitted assigns and successors in interest, and no other person will be entitled to any of the benefits conferred by this Agreement.
e. Except as otherwise expressly set forth in this Agreement, any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the parties hereto. Any amendment or waiver effected in accordance with this paragraph shall be binding upon each party. No waivers of or exceptions to any term, condition or provision of this Agreement, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term, condition or provision.
f. This Agreement shall be governed by and construed and enforced in accordance with the laws (other than the law governing conflict of law questions) of the State of Illinois. Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement may be brought and prosecuted in any such court or courts located within the State of Illinois and the parties consent to the jurisdiction of said court or courts located within the State of Illinois and to service of process by registered mail, return receipt requested, or by any other manner provided by law. Each party hereto agrees not to assert, by way of motion, as a defense or otherwise, in any such action, suit or proceeding any claim that it is not subject personally to the jurisdiction of such court, that the action, suit or proceeding is brought in an inconvenient forum, that the venue of the action, suit or proceeding is improper or that this Agreement, or any other agreement or transaction related hereto or the subject matter hereof or thereof may not be enforced in or by such court. In the event of litigation, a substantively prevailing party shall be entitled to reasonable attorney’s fees and expenses from a substantively non-prevailing party.
g. Recipient acknowledges that it is acting as a principal or as a principal’s broker for investment purposes, and without contemplating or intent of resale or “flip.” If acting as a principal’s broker, Recipient agrees that it shall cause its principal client to execute and return this Agreement to Broker prior to sharing the Confidential Information.
h. Recipient shall indemnify and hold MRSL harmless from and against any and all liability, loss, cost, damage or expense, including attorney’s fees, arising directly or indirectly from any party making a claim for a fee or commission alleging to have acted on Recipient’s behalf with respect to the Transaction other than Broker.
9. Agreement Binding Upon Affiliates. This Agreement shall be binding upon Affiliates (as hereinafter defined) of the parties hereto with whom Confidential Information may be shared or by whom Confidential Information is received from MRSL, Developer, DST or Tenant. The parties shall take all necessary action with their Affiliates so that such Affiliates comply with the terms of this Agreement. For the purposes of this Agreement, “Affiliates” means any company, organization or person which either party directly or indirectly controls or is under common control with. Any company, organization or person which has a common director, officer or employee with either party shall be presumed to be an Affiliate of such party for the purpose of this Agreement.
10. Counterparts. This Agreement may be executed simultaneously in one or more counterparts, including facsimiles, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.