non-disclosure agreement

PARTIES

(1)        KTB Global CRE Property Company 1 SARL a private limited liability company (société à responsabilité limitée) formed and existing under the laws of Luxembourg, having its registered office at 28, Boulevard F. W. Raiffeisen, L - 2411 Luxembourg, Grand Duchy of Luxembourg, and registered with the Luxembourg Register of Commerce and Companies (Registre de commerce et des sociétés, Luxembourg) under number B240753; (Disclosing Party or “Us”) and

(2)        The Receiving Party or “you” (Recipient)

1.          DISCLOSURE

1.1       The parties wish to exchange information with each other relating to a direct or indirect interest in the freehold property known as Tesco Distribution Centre, Donabate, County Dublin (the "Proposed Transaction").

1.2       In this agreement:

1.2.1         "Confidential Information" means all information in whatever form (including, without limitation, in written, documentary or electronic form) relating to the Proposed Transaction which is, whether before or after the date of this agreement, supplied or made available, directly or indirectly, to the Recipient or its Professional Advisers;

1.2.2         "Professional Advisers" means a party's lawyers, surveyors, accountants and other professional advisers;

1.2.3         "Provider" means a party to this agreement which discloses or makes available directly or indirectly Confidential Information;

1.2.4         "Recipient" means a party to this agreement which receives or obtains directly or indirectly Confidential Information.

1.3       In consideration of the Provider agreeing to disclose Confidential Information to the Recipient, the Recipient undertakes to the Provider that it shall:

1.3.1         subject to clauses 3 and 4, hold the Confidential Information in strict confidence and accept that the Confidential Information is commercially sensitive and that its release otherwise than in accordance with the terms of this agreement may be detrimental to the Provider;

1.3.2         not disclose or permit to be disclosed any of the Confidential Information to any person or make any announcement other than as permitted by this agreement and not to use the Confidential Information in any way, except for or in connection with, the Proposed Transaction; and

1.3.3         keep confidential the existence and contents of this agreement and of any discussions or negotiations between the Recipient and the Provider in respect of the Proposed Transaction save where disclosure is permitted by this agreement.

2.          TERM AND TERMINATION

2.1       The parties’ obligations under this agreement shall terminate (save in respect of the obligations in clause 1.3 which shall continue in respect of any Confidential Information retained pursuant to clause 5.2) on the earlier of:

2.1.1         two years after the date of this agreement; and

2.1.2         exchange of an agreement containing confidentiality provisions relating to the Proposed Transaction,

such termination shall be without prejudice to any antecedent breach of either party of its obligations in this agreement.

2.2       Clause 2.1 shall apply whether or not the Proposed Transaction proceeds.

3.          Permitted disclosure

3.1       The Recipient may disclose or permit to be disclosed Confidential Information to:

3.1.1         where necessary in connection with the Proposed Transaction, any subsidiary or parent undertaking of the Recipient (whether direct or indirect), any subsidiary undertaking of such parent, any partnership interest in or of the Recipient (the "Recipient Group"), any partner, trustee, nominee, operator, funder or arranger of equity or debt or investment manager or investment adviser to and/or of the Recipient or the Recipient Group or any funds managed or advised by, or clients of, the Recipient or the Recipient Group in each case from time to time;

3.1.2         the Professional Advisers engaged by the Recipient or the Recipient Group in respect of the Proposed Transaction; and

3.1.3         any of its or any member of the Recipient Group's officers, directors and necessary employees in connection with the Proposed Transaction,

provided that it procures that each such person to whom the Confidential Information is disclosed complies with the obligations set out in this agreement as if they were the Recipient.

3.2       The Recipient shall inform the Provider as soon as reasonably practicable upon becoming aware that a person to whom disclosure of Confidential Information is not permitted under this agreement, has become aware of Confidential Information.

3.3       Each party may disclose the Confidential Information to the minimum extent required by:

3.3.1         any order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or taxation authority of competent jurisdiction;

3.3.2         the rules of any listing authority or stock exchange on which its shares or the shares of any member of the Recipient Group are listed; or

3.3.3         the laws or regulations of any country to which its affairs are subject,

provided always that the Recipient informs the Provider of the disclosure, to the extent legally permissible, as soon as reasonably practicable.

4.          eXCLUSIONS

The obligations set out in clause 1 shall not apply, or shall cease to apply, to Confidential Information which the Recipient can show to the Provider's reasonable satisfaction:

4.1       is or becomes generally available to the public other than as a direct or indirect result of the information being disclosed by the Recipient in breach of this agreement; or

4.2       was in the Recipient's or any member of the Recipient Group's or any of its or their Professional Advisers' actual possession prior to the time of disclosure to the Recipient and which was lawfully acquired other than from the Provider or on behalf of it and that such source was not under any obligation of confidence in respect of that information; or

4.3       has been received or developed by the Recipient or any member of the Recipient Group or any of its or their Professional Advisers from a third party source that is not connected with the Provider and that such source was not under any obligation of confidence in respect of that information.

5.          RETURN OF THE CONFIDENTIAL INFORMATION

5.1       The Recipient shall as soon as reasonably practicable on receipt of a written request from the Provider return any Confidential Information received in hard copy to the Provider.

5.2       Nothing in clause 5.1 shall require the Recipient or any member of the Recipient Group or any of its or their Professional Advisers to destroy or, prohibit it from keeping a copy of, any Confidential Information:

5.2.1         which is held on any back-ups or archives of any computer system containing or previously containing the Confidential Information where such back-up or archiving occurs in the usual course of operating that computer system and where it is not reasonably practicable to delete the Confidential Information so held;

5.2.2         which the Recipient or any member of the Recipient Group or any of its or their Professional Advisers are required to retain for professional indemnity insurance purposes, internal audit processes or internal governance purposes; and

5.2.3         which the Recipient or any member of the Recipient Group or any of its or their Professional Advisers are required to retain by any competent judicial, governmental, regulatory or similar body or the rules or regulations of any listing authority or stock exchange on which the securities of the Recipient are listed or traded or for the purposes of any audit, provided always that nothing in this clause 5 shall prejudice the Recipient's obligation contained in clause 1.3.

6.          nO REPRESENTATION OR WARRANTY

6.1       Each party acknowledges that the Confidential Information may not be accurate or complete and neither the Provider nor its Professional Advisers accept responsibility or liability for (or make any warranty or representation, express or implied, with respect to) the accuracy or completeness of the Confidential Information.

6.2       The Recipient acknowledges that damages alone may not be an adequate remedy for any breach of its obligations under this agreement and, accordingly, without prejudice to any other rights or remedies that the Provider might seek, the Provider shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of the provisions of this agreement.

7.          miscellaneous

7.1       The terms of this agreement may only be amended or modified by written agreement between the parties.

7.2       This Agreement and any dispute, controversy, proceeding or claim whatsoever arising out of or in any way relating to it or its formation, including the Data Room Rules shall be governed by and construed in accordance with Irish law and each party irrevocably submits to the exclusive jurisdiction of the courts of Ireland.

7.3       This agreement is personal to the parties and neither party shall assign, transfer, charge or deal in any other manner with this agreement or any of its rights under it nor purport to do any of the same.

7.4       This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by the law of Ireland.

7.5       The Provider and the Recipient irrevocably agree that the courts of Ireland have exclusive jurisdiction to determine any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

DATA ROOM CONDITIONS 

• KTB Global CRE Property Company 1 SARL (the “Vendor”) 

• Tesco Distribution Centre, Donabate, County Dublin (the “Property”)

I am being granted access to the information contained in this on-line data room (the “Data Room”, “Information”) for the purposes of considering the purchase of the Property (the “Transaction”). I understand that my access to this Data Room is subject to the applicable laws and the following conditions:

1. All of the Information is considered confidential to the organisation which I represent or advise (the “Prospective Purchaser”);
2. The Non Disclosure Agreement has been accepted by the Prospective Purchaser (the “Non Disclosure Agreement”). 
3. I confirm that (i) I understand and agree to comply with the terms of the Non Disclosure Agreement; (ii) I am an authorised user of the Data Room to whom a password to access the Data Room has been issued and I have not received a password to access the Data Room by unauthorised means; (iii) I will not attempt to circumvent or disable any of the security features of the Data Room, and will not enable or allow others to access the Data Room using my authorisation to the Data Room. 
4. Neither the Vendors nor its Professional Advisers represent the Information as being comprehensive or that the Data Room contains all information that may be desirable or necessary in order to evaluate the Transaction.
5. The Information has not been independently verified. The sole purpose of making available the Information is to provide information to assist the Prospective Purchaser in making its own evaluation of the Transaction. It is not intended to form the basis of any investment decision.  Accordingly, no information provided by the Vendors or their Professional Advisers should be regarded as the giving of investment advice to the Prospective Purchaser. None of the Information or any part thereof, constitutes an offer, invitation or proposal by or on behalf of the Vendors, the Professional Advisers or any of its other Professional Advisers.
6. At the sole discretion of the Vendors and/or the Professional Advisers, further Information may be added to or removed from the Data Room at any time and the Information is subject to updating, expansion, revision and amendment.  No obligation is accepted to update, expand, revise or amend the Information.
7. Neither the Vendors nor the Professional Advisers or its other Professional Advisers accept any responsibility to inform the Prospective Purchaser or any of its Professional Advisers of any matter arising or coming to any of their notice which may affect any matter referred to in the Information (including but not limited to any error or omission which may become apparent after the Prospective Purchaser has been granted access to review the Information).
8. I acknowledge and accept that neither the Vendors nor the Professional Advisers nor its other Professional Advisers are making any representations or warranties, express or implied, as to the accuracy or completeness of the Information, and no person, so far as permitted by law and except in the case of fraud, will have any liability with respect to any use or reliance upon any of the Information, for any loss or damage (whether foreseeable or not) suffered by, or costs or expenses incurred by, the Prospective Purchaser or any of its Professional Advisers from acting on, or refraining from acting because of any matter contained in or forming part of or omitted from the Information (regardless of whether the loss or damage arises in connection with any negligence, default, lack or care or misrepresentation arising in contract or equity on the part of the Vendors or the Professional Advisers or any of their other Professional Advisers). 

By entering the Data Room I am acknowledging that I have read, understood and agree to (i) the terms of the Non-Disclosure Agreement and (ii) the Data Room Conditions.  The Data Room Conditions and the Non-Disclosure Agreement shall be governed by and construed in accordance with Irish law and I agree to submit to the exclusive jurisdiction of the Irish courts.