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NON-DISCLOSURE UNDERTAKINGTHIS UNDERTAKING (the "Agreement") is made and entered into as of this ____ day of________, 2024, by _____________________ ("Recipient") in favor of Neshaminy Mall JointVenture Limited Partnership, an Illinois limited partnership, and certain of its affiliates(collectively, “Owner”) who own Neshaminy Mall, located in Bensalem, Pennsylvania (the“Property”).The Recipient is interested in obtaining information regarding the Property with respect to thepotential purchase of the Property (the “Transaction”). Owner will not and will not permit any ofits Representatives to disclose or deliver to the Recipient, non-public, confidential or proprietaryfinancial, legal, technical, business or other information unless and until Recipient executes thisAgreement. By executing and delivering this Agreement, the Recipient may induce OWNER toprovide or cause to be provided Confidential Information and agrees as follows:1. Confidential Information(a) "Confidential Information" means all information that OWNER, its affiliates, orRepresentatives (hereinafter defined) furnish or otherwise make available to Recipient or itsRepresentatives, whether before or after the date of this Agreement, and whether oral, written orelectronic, together with any reports, analyses, compilations, forecasts, memoranda, notes, studiesand any other written or electronic materials prepared by or for Recipient or its Representatives."Confidential Information" includes, without limitation, information relating to OWNER services,the marketing or promotion of any OWNER service, OWNER's business policies or practices,strategic plans, pricing, lease rates, tenant information, sales per square foot, vendor names,customer lists, management systems, and information received from others that OWNER isobligated to treat as confidential. Confidential Information disclosed to Recipient or itsRepresentatives by any OWNER Representative, subsidiary, affiliate, or agent is covered by thisAgreement. Any oral discussions between OWNER, OWNER’s broker and/or OWNER’sRepresentatives related to the Transaction or the Confidential Information shall be deemed to beConfidential Information.(b) Confidential Information shall not include that information defined as ConfidentialInformation above that Recipient can conclusively establish: (i) is or subsequently becomespublicly available without Recipient's or its Representatives breach of any obligation owed toOWNER; (ii) became known to Recipient prior to OWNER's disclosure of such information toRecipient; (iii) became known to Recipient from a source other than OWNER other than by thebreach of an obligation of confidentiality owed to OWNER; or (iv) is independently developed byRecipient.(c) “Representatives” means a party’s respective affiliates, directors, officers, employees,agents, accountants, counsel, investment bankers, consultants, commercial bankers, members,managing members and those partners and investors identified to and pre-approved in writing byOWNER.2. Restrictions
(a) Confidential Information shall be used by Recipient solely for the purpose of evaluatingthe Transaction. Recipient shall not disclose any Confidential Information to any third parties,other than as set forth herein. However, Recipient may disclose Confidential Information inaccordance with judicial or other governmental order, provided Recipient shall give OWNERreasonable notice prior to such disclosure and shall comply with any applicable protective orderor equivalent. In the event a protective order or other remedy is not obtained by OWNER,Recipient may only furnish that portion of the Confidential Information which, in the opinion ofRecipient’s counsel, Recipient is legally compelled to disclose and Recipient will exercisereasonable efforts to obtain reliable assurance that confidential treatment will be accorded anyConfidential Information furnished.(b) Recipient shall take reasonable security precautions, at least as great as the precautionsit takes to protect its own confidential information, to keep confidential the ConfidentialInformation. Recipient may disclose Confidential Information only to Recipient's Representativeson a need-to-know basis. Recipient’s Representatives shall be informed by Recipient of theconfidential nature of the Confidential Information and must agree to keep all ConfidentialInformation strictly confidential in accordance with this Agreement. In any event, Recipient shallbe responsible for any breach of this Agreement by any of its Representatives and Recipient agreesat its sole expense to take all reasonable measures to restrain its Representatives from the breachof this Agreement.(c) Confidential Information may be disclosed, reproduced, summarized or distributed onlyas expressly provided hereunder. Recipient agrees to segregate all such Confidential Informationfrom the confidential information of others in order to prevent commingling.(d) Recipient agrees that (i) neither Recipient nor any of its Representatives shall discuss theTransaction or any Confidential Information with any tenant, lender, servicer, special servicer,investor, partner or ground lessor (if any) of, or agent for, the Property, or any governmental orquasi-governmental agency or representative, without the prior written consent of OWNER, and(ii) neither Recipient nor any it’s Representative shall access any non-public areas of the Propertywithout the prior written consent of OWNER.(e) Notwithstanding anything to the contrary set forth herein, unless the prior written consentof OWNER is obtained (in OWNER’s sole and absolute discretion), neither Recipient nor any ofits Representatives shall have the right hereunder to disclose Confidential Information to aDisqualified Institution and a Disqualified Institution shall never be deemed to be a“Representative” of Recipient; provided, however, that if Recipient meets the qualifications of aDisqualified Institution under the immediately following sentence, it shall not be considered aDisqualified Institution and it shall be entitled to share Confidential Information with its directors,officers, and employees without violating the provisions of this sentence. The term “DisqualifiedInstitution” shall mean (i) any person which is primarily engaged in the ownership of retail mallsin the United States which directly or indirectly competes with OWNER or its subsidiaries engagedin the ownership of retail malls in the United States and (ii) any real estate investment trust (assuch term is defined in Section 856 of the Internal Revenue Code of 1986 and any regulationspromulgated thereunder, or any successor provision) or any affiliate thereof (but excluding any
real estate investment trust which is generally in the business of providing commercial mortgageloans).3. Rights and Remedies(a) Recipient shall notify OWNER immediately upon discovery of any unauthorized use ordisclosure of Confidential Information, or any other breach of this Agreement by Recipient, andwill cooperate with OWNER in every reasonable way to help OWNER regain possession of theConfidential Information and prevent its further unauthorized use.(b) Recipient shall immediately return all originals, copies, reproductions and summaries ofConfidential Information at OWNER's request or, at OWNER's option, certify destruction of thesame.(c) Recipient acknowledges that monetary damages may not be a sufficient remedy forunauthorized disclosure of Confidential Information and that OWNER shall be entitled, withoutwaiving any other rights or remedies, to exercise any right, power or remedy available to OWNERat law or in equity. Such remedies may include, without limitation, the right to sue for specificperformance, injunctive relief and/or damages. No forbearance, failure or delay in exercising anysuch right, power or remedy shall operate as a waiver thereof.4. Miscellaneous(a) All Confidential Information is and shall remain the property of OWNER. By disclosinginformation to Recipient, OWNER does not grant any express or implied right to Recipient to orunder OWNER copyrights, trademarks, or trade secret information.(b) The Confidential Information has been prepared for the purpose of providing general,financial, legal, technical and other information concerning OWNER and the Property. Norepresentation is made by OWNER as to the accuracy or completeness of such information.OWNER expressly disclaims any and all liability for representations, expressed or implied,contained in, or for omissions from, the Confidential Information and any other written or oralcommunication transmitted in connection herewith. Nothing contained in the ConfidentialInformation is, or should be relied upon as, a promise or forecast of the future of OWNER or theProperty. In furnishing the Confidential Information, OWNER does not undertake any obligationto provide access to any additional information or to conduct any further discussions withRecipient.(c) For a period from one (1) year from the date of this Agreement, Recipient agrees thatneither it, nor its respective affiliates will, directly or indirectly, solicit for employment or employany officer or employee of OWNER or its affiliates, except with t he prior written consent ofOWNER.(d) Notwithstanding anything to the contrary set forth herein, the terms and conditions ofthis Agreement shall remain in full force and effect for twelve (12) months from the date hereof.
(e) All notices and other communications required or permitted under this Agreement(“Notices”) must be in writing and (a) sent by certified mail, return receipt requested; or (b)delivered by nationally recognized overnight delivery service providing evidence of the date ofdelivery, with all charges prepaid, addressed to the appropriate party at its address indicated in thisAgreement. The Recipient or OWNER each may change from time to time the address to whichNotices must be sent, by Notice given in accordance with this paragraph. All Notices given inaccordance with this paragraph will be deemed to have been given three (3) Business Days afterhaving been deposited in any mail depository regularly maintained by the United States postalservice, if sent by certified mail, or one (1) Business Day after having been deposited with anationally recognized overnight delivery service, if sent by overnight delivery. “Business Day” isdefined as any day, other than a Saturday, a Sunday, a federal holiday or any day on which bankinginstitutions in Chicago are not generally open for business. OWNER’s address shall initially be110 North Wacker Drive, Chicago, IL 60606.(f) Recipient agrees that no contract or agreement pertaining to the Transaction betweenOWNER and Recipient will be deemed to exist between OWNER and Recipient until a definitivewritten agreement has been executed and delivered by OWNER and Recipient. Recipient agreesthat unless and until a definitive written agreement between OWNER and Recipient has beenexecuted and delivered, neither OWNER nor any of its representatives will have any legalobligation or liability of any kind with respect to the Transaction by virtue of this Agreement, anyother written or oral expression with respect to a possible agreement pertaining to such Transactionby OWNER or any of its Representatives, or otherwise.(g) The parties each acknowledge that nothing herein (i) requires the disclosure of anyConfidential Information, which information shall be disclosed, if at all, in the sole and absolutediscretion of OWNER, or (ii) requires either party to proceed with the Transaction except as mayotherwise be agreed in writing.(h) This Agreement constitutes the entire agreement between the parties with respect to thesubject matter hereof and merges all prior discussions between them as Confidential Information.It shall not be modified except by a written agreement dated subsequent to the date of thisAgreement and signed by both parties. None of the provisions of this Agreement shall be deemedto have been waived by any act or acquiescence on the part of OWNER, its agents, or employees,but only by an instrument in writing signed by an authorized officer of OWNER. No waiver ofany provision of this Agreement shall constitute a waiver of any other provision(s) or of the sameprovision on another occasion.(i) If either OWNER or Recipient employs attorneys to enforce any rights arising out of orrelating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys'fees. This Agreement shall be construed and controlled by the laws of the State of Illinois, andRecipient further consents to jurisdiction by the state and federal courts sitting in the State ofIllinois. Process may be served on either party by U.S. Mail, postage prepaid, certified orregistered, return receipt requested, or by such other method as is authorized by the Illinois LongArm Statute.
(j) Subject to the limitations set forth in this Agreement, this Agreement will inure to thebenefit of and be binding upon the parties, their successors and assigns.(k) If any provision of this Agreement shall be held by a court of competent jurisdiction tobe illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.(l) Subject to Section 4(d), all obligations created by this Agreement shall survive changeor termination of the parties' business relationship.IN WITNESS WHEREOF, Recipient has executed this Agreement.Recipient:Address:By:Name:Title:
RIDER (“RIDER”) TO NON-DISCLOSURE UNDERTAKING (THE“CONFIDENTIALITY AGREEMENT”) FOR BUYER’S BROKER[ONLY EXECUTE IF THERE IS A BUYER’S BROKER]The provisions of this Rider are hereby added to the above-referenced Confidentiality Agreement.The provisions of this Rider supersede and replace any conflicting provisions of the ConfidentialityAgreement. Except where the context clearly requires otherwise, the term “ConfidentialityAgreement” shall mean the Confidentiality Agreement as amended by this Rider.The Confidentiality Agreement shall be amended to add the following:1. Recipient as Principal and Other Brokers or Agents – Recipient is a principal and not an agent of oracting on behalf of any other party in connection with the purchase of the Property. Unless otherwise setforth in the definitive documents executed in connection with the Transaction between OWNER andRecipient, Recipient will not look to OWNER’s Broker (“Broker”) or to OWNER for any brokeragecommission, finder's fee, or other compensation in connection with the sale of the Property or any interesttherein. Recipient acknowledges that it has not had any discussion regarding the Property with any brokeror agent except for ____________________________________________________ (“Recipient’s Broker”)(if left blank, this will be deemed to read “none”). Recipient shall indemnify and hold OWNER andBroker harmless from and against any claims, causes of action, or liabilities relating to the Property by anyagents or brokers resulting from Recipient’s actions.2. Recipient’s Broker - The Recipient has appointed Recipient’s Broker with respect to the Transaction.Unless otherwise set forth in the definitive documents executed in connection with the Transaction betweenOWNER and Recipient, the Recipient agrees to pay all brokerage fees, finder's fees or any othercompensation claimed by the Recipient’s Broker in connection with its interest in or proposed or actualpurchase of the Property or any interest therein. The Recipient’s Broker, by signing below, agrees to bebound by all the terms and conditions of the Confidentiality Agreement (as amended hereby) whetherstated as obligations of the Recipient or the Recipient’s Broker under the terms and conditions of theConfidentiality Agreement (as amended hereby). Unless otherwise set forth in the definitive documentsexecuted in connection with the Transaction between OWNER and Recipient, the Recipient’s Brokerfurther agrees it will not look to the OWNER or Broker for any brokerage commissions, finder's fee or anyother compensation claimed in connection with the sale of the Property or any interest therein to theRecipient or any other party (whether or not consummated for any reason). The Recipient’s Broker agreesherewith that its authorization to act in any capacity with respect to the Transaction is limited torepresenting the Recipient and agrees that it will not discuss or exchange any information regarding theProperty with any party other than the Recipient. Recipient and Recipient’s Broker agree to hold Brokerand OWNER, its officers, directors, partners, employees, agents, representatives, and any of their affiliates,beneficiaries, successors, and assigns harmless from, and shall indemnify and defend them against any andall fines, losses, damages suites, claims actions, demands, liabilities, costs and expenses (including courtcosts and attorney's fees) of any kind, nature or character (collectively, the "Claims"), in connection with,related to, resulting from or arising or alleged to have arisen in connection with the Recipient’s Broker'sactions.[remainder of page left blank; signatures on next page]
Accepted and Agreed to this ______ day of _____________________, 2024.RECIPIENT: RECIPIENT’S BROKER:Company CompanySignature SignatureName NameTitle TitleDate DateAddress 1 Address 1Address 2 Address 2City, State, and Zip Code City, State, and Zip CodeTelephone TelephoneFax FaxEmail Address Email Address