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This deal is currently under contract.
CONFIDENTIALITY AGREEMENTThis Confidentiality Agreement (this “Agreement”) is entered into by ___________________________,a ________________________ (“Counterparty”), for the benefit of KILROY REALTY, L.P., a Delawarelimited partnership, and KILROY REALTY FINANCE PARTNERSHIP, L.P., a Delaware limitedpartnership (collectively, together with their affiliates and subsidiaries, “Owner”), with an address of c/oKilroy Realty, Corporation, 12200 W. Olympic Blvd., Suite 200, Los Angeles, California, Attn: LegalDepartment, as of the date set forth on the signature page attached hereto (the “Effective Date”). Owneris the owner of certain real property commonly referred to as “Santa Fe Summit” located on Torrey SantaFe Road in San Diego, California (the “Property”). In consideration of being provided ConfidentialInformation (as hereafter defined) relating to the Property and a possible sale, joint venture or othertransaction between the parties (the “Potential Transaction”), Counterparty hereby agrees as follows:1. The term “Confidential Information” as used herein means all information and material (written ororal, irrespective of the form and format of the communication) furnished or conveyed by or on behalf ofOwner relating to the Potential Transaction either before or after the Effective Date, including allanalyses, notes and summaries (irrespective of the form or format) generated by or for Counterpartywhich are based upon or incorporate any such information or material, and the fact that this Agreementexists or that the foregoing information or material has been made available to Counterparty.Notwithstanding the preceding sentence, Confidential Information shall not include information which (a)was in Counterparty's or its Representatives' possession from a source other than Owner prior to theEffective Date hereof (provided that, to Counterparty's knowledge, such information was or is not subjectto a legal, fiduciary or contractual obligation of confidentiality), (b) is or becomes publicly known, exceptfor any such information that becomes publicly known because of disclosure by Counterparty or itsRepresentatives (as defined below) in violation of this Agreement, (c) is independently developed,discovered or arrived at by Counterparty or its Representatives without the use of the ConfidentialInformation, (d) is or becomes available to Counterparty from a source other than Owner after theEffective Date hereof (provided that, to the knowledge of Counterparty such information was or is notsubject to a contractual, legal or fiduciary obligation of confidentiality of secrecy to Owner) or (e) isreleased from confidential treatment by written consent of Owner.2. Confidential Information may be disclosed as required by regulation, government order, judicial orregulatory action, law or similar legal process; provided that no such disclosure shall be made unlessCounterparty provides Owner with prompt written notice (to the extent not prohibited by law) of any suchdemand or requirement so that Owner may seek (at Owner's sole cost and expense) a protective order orother appropriate remedy and/or waive compliance with the provisions of this Agreement as to any suchdemand and requirement. If, after providing such written notice, Counterparty is nevertheless (in theopinion of its counsel) legally compelled to disclose Confidential Information, Counterparty may disclosethe same solely to the extent necessary to comply with any such demands or requirements. At any timeupon the written request of Owner or when Counterparty elects not to pursue, or is not the successfulbidder of, the Property, Counterparty must destroy or, at the written request of Owner, return theConfidential Information within five (5) business days thereof and agrees not to retain copies of any suchConfidential Information, except that Counterparty will not be obligated to erase Confidential Informationthat is automatically saved in a temporary archived computer backup system in accordance with any then-existing written security or disaster recovery policies. Notwithstanding the foregoing and the term of thisAgreement, Counterparty may retain copies of the Confidential Information to the extent necessary tocomply with its legal or regulatory requirements or for purposes of defending or maintaining any legalaction related to this Agreement or the Potential Transaction as well as any internal analysis prepared byCounterparty or its Representatives that contain Confidential Information; provided that any such retained
-2-Confidential Information continues to be held confidential pursuant to this Agreement so long as suchConfidential Information is retained.3. Counterparty agrees that the Confidential Information will be used solely to evaluate the PotentialTransaction and must be kept confidential by Counterparty and its Representatives. Counterparty will notdisclose Confidential Information or permit it to be disclosed to any other party; provided, however, thatConfidential Information may be disclosed (and copies provided) to Counterparty's directors, officers,employees and advisors (collectively, “Representatives”) on a “need to know” basis for the sole purposeof evaluating the Potential Transaction; provided that Counterparty directs such Representatives to treatthe Confidential Information in a manner consistent with Counterparty's obligations under this Agreementand Counterparty remains liable for any disclosure of the Confidential Information by its Representativesthat is not authorized by this Agreement. Neither Counterparty, nor any of its Representatives, shall eitherdirectly or indirectly use the Confidential Information in any way that is detrimental to Owner or theProperty or communicate with any tenant, property manager, leasing agent, service contractor, lien holderor other party with any interest in or contractual relationship affecting the Property, except in the ordinarycourse of business that is unrelated to the Potential Transaction or the Confidential Information and in anyevent will not discuss the Potential Transaction or the Property with any such party.4. Counterparty for itself and on behalf of its Representatives, acknowledges and agrees that, except asmay be set forth in a fully executed, definitive agreement between the parties, neither Owner nor itsaffiliates, and none of their respective directors, partners, officers, employees, consultants, advisors oragents, has made or hereby makes any express or implied representations or warranties as to the accuracyor completeness of the Confidential Information. None of the foregoing persons shall have any liabilityto Counterparty or its Representatives relating to or arising from the use of any Confidential Informationor for any errors therein or omissions therefrom. Counterparty agrees to rely solely on its ownindependent investigation, analysis, appraisal and evaluation of the facts and circumstances in connectionwith evaluating the Potential Transaction and not on the accuracy or completeness of the ConfidentialInformation.5. This Agreement is not an offer to sell or enter into any other transaction and shall not be construed assuch. Owner may conduct, and reserves the right to change, the process that may or may not result in thePotential Transaction in such a manner as Owner, in its sole discretion, may determine (including, withoutlimitation, negotiating and entering into a definitive agreement with any third party without notice toCounterparty).6. In the event of any breach of this Agreement by Counterparty or its Representatives, Owner may beirreparably and immediately harmed and monetary damages would constitute an inadequate remedy atlaw. As a result, without prejudice to any other rights and remedies available to Owner, Owner shall beentitled to seek equitable relief by way of injunction, specific performance or otherwise, without theposting of any bond or other security or proving damages. Counterparty agrees to indemnify Owner forany losses, claims, damages (excluding loss of profit, consequential and punitive damages), costs andexpenses, including reasonable attorneys' fees that Owner may incur or suffer in connection with thebreach of this Agreement and/or its enforcement.7. This Agreement shall be governed by the laws of the State of California. Any action brought inconnection with this Agreement shall be brought in the courts of the State of California or the UnitedStates District Court for the Central District of California, and the parties hereto hereby irrevocablyconsent to the jurisdiction of such courts. In the event of any legal action under this Agreement, the non-prevailing party shall be required to pay the court costs of the prevailing party in such legal action to theextent determined by a court of competent jurisdiction. This Agreement supersedes any priorunderstandings, contains the entire agreement between the parties with respect to the subject matter
-3-herein, and no provision may be modified or waived unless agreed to in writing by Counterparty andOwner. No failure or delay in exercising any right, remedy, power or privilege hereunder shall operate orbe construed as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or futureexercise thereof or the exercise of any other right, remedy, power or privilege. Counterparty may not assignthis Agreement without Owner's prior written consent. Subject to the preceding sentence, this Agreementshall be binding upon and shall inure to the benefit of Counterparty's and Owner's successors and assigns. Ifany provision of this Agreement shall be deemed invalid or unenforceable, then the remainder of thisAgreement shall not be affected thereby, and each provision shall be deemed valid and enforceable to thefullest extent permitted by law. Time is of the essence as to each provision in which time is an element ofperformance herein. This Agreement may be signed electronically and any electronic signatures on thisAgreement shall be legally binding and have the same validity, enforceability, and admissibility ashandwritten signatures.8. The term of this Agreement shall be two (2) years from the Effective Date; provided, however, that ifOwner delivers a written notice to Counterparty of any claim or cause of action arising hereunder duringsuch two (2) year period, then Counterparty's obligation with respect to such claim or cause of actionshall survive said two (2) year period; provided, further, that this Agreement shall be superseded in itsentirety by the terms of a definitive agreement between Owner and Counterparty.Please acknowledge your agreement to and acceptance of the foregoing by signing and completing allinformation requested below and returning to Owner.COUNTERPARTY:_______________________________________,a ______________________________________By:Name:Title:Address:Phone:Email:Date Signed: