TO: Jones Lang LaSalle Real Estate Services, Inc. ("JLL Canada")

AND: ATHOL STREET LIMITED PARTNERSHIP BY ITS GENERAL PARTNER, 161 ATHOL STREET GP LTD. (“161 Athol”)

RE: Confidentiality Agreement for 1Sixty1: 161 Athol Street East, Oshawa, Ontario ("Property") 

We have been advised that JLL Canada has been retained by the 161 Athol as its exclusive agent to arrange a sale of the Properties.  161 Athol has requested that all interested parties should direct all inquiries and communications through JLL Canada only. We have requested that you furnish us with certain information concerning the Properties. This information may include, without limitation, (i) an offering memorandum or materials, (ii) various other documents and data concerning the Properties whether delivered in writing, orally, or through authorized access to a designated due diligence extranet site, and (iii) any work product developed from any of the foregoing (collectively, the “Evaluation Material").

In consideration of the mutual covenants and agreements hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties covenant and agree as follows:

1.     “Agreement” shall mean this agreement.

 

2.      “Confidential Information” means all information, data, documents, agreements, files and other materials on any media and in any form, whether written, electronic or oral, of 161 Athol (its affiliates, employees, directors, officers, agents, advisors, partners, consultants and all other persons that, directly or indirectly: (i) are controlled by the 161, (ii)  control 161 Athol  or Fengate Capital Management Ltd. (together with its successors and permitted assigns, “Fengate”), or (iii) are controlled by a person that also controls 161 Athol, together with each of their respective successors and assigns (collectively or individually, the “Seller”)) that is received by the Recipient(s) (as hereinafter defined) in the Evaluation Material or otherwise including all analyses, business plans, models, corporate and organizational structures, investment history, investment methodologies, budgets, forecasts, potential and actual sources of financing, information pertaining to current, future or past tenants, intellectual property, customer lists, financial information, metadata and related analysis, employee information, reports, studies, samples, investor information and all other information of every kind that is not generally available to the public, or which could reasonably be considered confidential or proprietary, or which is marked “Confidential”, “Proprietary” or similar, together with all documents prepared by or for any Recipient(s)  which contain or otherwise reflect, or are generated in whole or in part from, any of the foregoing.  “Confidential Information” does not, however, include information: (i) that is at the time of its disclosure, or thereafter becomes, generally available to the public other than as a result of any act or omission by the Recipient(s) (as hereinafter defined); (ii) which the Recipient(s) (as hereinafter defined) can conclusively prove was lawfully in its possession prior to its disclosure by the Seller or JLL Canada and which was not directly or indirectly under or subject to any confidentiality agreement or arrangement or other contractual or fiduciary obligation of secrecy to the Seller (iii) that was or becomes available to the Recipient(s) (as hereinafter defined) on a non-confidential basis from a source other than the Seller or JLL Canada, provided that such source is not bound by a confidentiality agreement or arrangement or other contractual or fiduciary obligation of secrecy to the Seller; or (iv) which the Recipient(s) (as hereinafter defined) can conclusively prove was exclusively, comprehensively and independently acquired or developed by the Recipient(s) (as hereinafter defined) without using the Evaluation Material or violating any of its obligations under this Agreement.

3.   “Evaluation Material” shall have the meaning ascribed to above and shall constitute Confidential Information.

4.   “Properties” mean 161 Athol Street East, Oshawa, Ontario  

5.   “Recipient(s)” shall mean, us, or any person to whom we disclose all or any portion of the Evaluation Material, pursuant to the terms hereof, including but not limited to any our affiliates, employees, directors, officers, shareholders (except to the extent that the Recipient is publicly owned), agents, trustees, partners, consultants, advisors (including financial and insurance advisors and legal counsel), direct and indirect subsidiaries and all other persons that are directly or indirectly engaged or retained by any of the foregoing,, together with each of their respective successors and permitted assigns.

6.     We acknowledge and agree the Evaluation Material will be furnished to us only on the condition that we agree to treat the Evaluation Material in strict confidence in accordance with the terms, conditions and provisions of this Agreement.

7.      This Agreement shall terminate upon the date which is two (2) years after the date hereof. All Evaluation Material relating to the Properties which may be furnished to any Recipient(s) under this Agreement shall continue to be the property of the Seller and/or JLL Canada, as the case may be. All legal and equitable rights in and to Evaluation Material is and shall remain the exclusive property of the Seller and will be held by the Recipient(s) in trust for the exclusive benefit of the Seller.  No disclosure of the Evaluation Material or other express or implied provision herein shall constitute an assignment, grant, option, license or transfer of any of the Seller’s right, title or interest (legal or equitable) in the Evaluation Material to any Recipient(s).  The Evaluation Material will be used by the Recipient(s) solely for the purpose of evaluating the possible acquisition of the Properties and will not be used in any manner detrimental or adverse to Seller, the Properties, the manager(s) of the Properties or any partner, fellow member or lender of any Seller or manager(s) of the Properties (the “Purpose”). As soon as reasonably possible upon Seller’s or JLL Canada’s request or upon the termination of our Agreement, we will return to Seller or JLL Canada, as applicable, or, to the extent permitted by law, destroy, all Evaluation Material and any other written material containing or reflecting any of the Evaluation Material that has been provided to or created by us, and will not retain any copies, extracts, or other reproductions in whole or in part of such written materials.  Notwithstanding the termination of this Agreement, the Recipient’s obligations and the Seller’s remedies with respect to the confidentiality of the Evaluation Material shall survive. 

8.   The Recipient(s) (as defined below) shall at all times, and (to the extent of its legal liability to do so) shall cause and/or ensure that any Recipient(s) shall at all times:  (a) ensure that all Evaluation Material is maintained in strict confidence and is not disclosed to or accessed by any other person; (b) protect the Evaluation Material using at least the same efforts and degree of care as the Recipient normally uses to protect its own confidential information (but in no event shall such efforts or care be less than reasonable); (c) not use (or permit or suffer any other Recipient(s)) to use) the Evaluation Material for any purpose other than the Purpose; and (d) not use or exploit (or permit or suffer any other Recipient(s) to use or exploit) the Evaluation Material for its own benefit or the benefit of another.

9.   Notwithstanding paragraph 8 above, the Recipient(s) may disclose the Evaluation Material under the following limited circumstances:

(a) with the Seller’s or JLL Canada’s prior written consent;

(b) to another Recipient who need to know the Evaluation Material in connection with the Purpose and have been informed by the Recipient in writing of the confidential nature of the Evaluation Material and have been instructed to keep the Evaluation Material confidential in a manner substantively equivalent to the obligations set out in this Agreement;

(c) if and to the extent the Recipient or any other Recipient(s) become compelled to disclose any of the Evaluation Material by law, regulation, court order or administrative or other regulatory or self-regulatory proceeding, provided that:

(i) the applicable Recipient(s) member shall, to the extent permitted by law, provide the Seller with prompt written notice of such requirement (unless legally prohibited from doing so) and, in any event, before such Evaluation Material is disclosed so that the Seller may seek a protective order or other appropriate remedy and/or waive compliance with the applicable provisions of this Agreement in writing; and

(ii) such protective order or other remedy is not obtained, or if the Seller waives compliance with the applicable provisions of this Agreement in writing, the applicable Recipient shall: (A) furnish only that portion of the Evaluation Material which it is legally required to furnish, and (B) notify the recipient(s) in writing of the confidential nature of the Evaluation Material and use reasonable efforts to obtain and (to the extent legally permissible) provide the Seller with evidence of, reliable assurances that the disclosed Evaluation Material will be kept confidential by such recipient(s).

10.             We agree that we will be responsible for any breach of the terms and conditions set forth in this Agreement by a party to whom we have disclosed the Evaluation Material.  In addition, the Recipient is and shall be fully liable and responsible for any other Recipient’s use of the Evaluation Material, including for any disclosure or misuse of the Evaluation Material that is contrary to the terms or intent of this Agreement. The Recipient shall indemnify and hold the Seller and JLL Canada harmless from all costs, expenses (including all reasonable lawyers’ fees on a solicitor-client, full-indemnity basis), damages, losses and claims of every kind, legal or equitable, contingent or matured, arising in connection with any breach of the terms or intent of this Agreement by any Recipient and any enforcement actions or proceedings taken by any member of the Seller or JLL Canada associated with any breach or other protection of its/their rights hereunder. The Recipient further agrees that, in the event of a breach of this Agreement, the Seller will suffer irreparable injury and damages and that monetary damages alone may not be a sufficient remedy for any such breach. As a result, and in addition to all other remedies that the Seller may be entitled to, the Seller shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach without the requirement for the securing or posting of any bond or other security. The Recipient (for and on behalf of itself and the other Recipient) further agrees that it will not oppose the granting of such relief on the basis that the Seller has an adequate remedy at law.

11.             We acknowledge and agree that neither Seller nor JLL Canada nor any director, officer, employee, partner, member, agent, counsel or representative of Seller or JLL Canada, including without limitation any lawyer, asset manager, management company, appraiser or engineer retained by Seller or JLL Canada (collectively, the “Owner Representatives”) make any representation or warranty whatsoever as to the accuracy or completeness of the Evaluation Material. Any financial information and/or projections contained in the Evaluation Material represent estimates based on assumptions believed to be reasonable under the circumstances, although they have not been independently verified, and no representation or warranty of any kind whatsoever (including, but not limited to, reasonableness, accuracy, or completeness) is made by Seller, JLL Canada or the Owner Representatives. JLL Canada and Seller expressly disclaim any and all liability for representations or warranties, express or implied, regarding the Evaluation Material or that actual results will conform to projections in the Evaluation Material; and we agree that neither JLL Canada nor Seller nor the Owner Representatives shall have any liability to us or to any Recipient resulting from our or their use or reliance upon the Evaluation Material, whether or not a purchase of the Properties is consummated. We represent that we will conduct our own independent investigations for all those matters which we deem necessary or appropriate in order to evaluate any proposed transaction involving the Properties. In the event that Seller and we enter into a definitive agreement for the purchase and sale of the Properties, the provisions of this Section 11 are subject to the terms of such definitive agreement concerning the Evaluation Material.

12.   We agree to be responsible for the payment of any fee, commission or other compensation payable to any broker, finder or agent who alleges it has dealt with or through us, other than JLL Canada, and JLL Canada shall have no obligations to share any part of its commission with any broker, agent, finder or any other person or entity who has dealt with or through us. We hereby agree to indemnify, defend and hold Seller and JLL Canada harmless from and against any and all claims, damages, losses and liabilities (including reasonable legal fees and disbursements) in this regard.

13.   We agree to be responsible for the payment of any fee, commission or other compensation payable to any broker, finder or agent who alleges it has dealt with or through us, other than JLL Canada, and JLL Canada shall have no obligations to share any part of its commission with any broker, agent, finder or any other person or entity who has dealt with or through us. We hereby agree to indemnify, defend and hold Seller and JLL Canada harmless from and against any and all claims, damages, losses and liabilities (including reasonable legal fees and disbursements) in this regard.

14. This Agreement shall be (i) binding on us and inure to the benefit of the Seller and JLL Canada and their respective successors or assigns and (ii) governed by and construed in accordance with the internal laws of the Province of Ontario and the federal laws of Canada applicable therein and the parties expressly agree that venue for any such dispute/claim shall only be in Toronto, Ontario. THE SUBMISSION OF THE EVALUATION MATERIAL AND ANY DRAFT PURCHASE AGREEMENT FOR EXAMINATION IS NOT INTENDED TO, NOR WILL IT, CONSTITUTE AN OFFER TO SELL THE PROPERTIES, OR A RESERVATION OF, OR OPTION OR PROPOSAL OF ANY KIND FOR THE SALE OR PURCHASE OF THE PROPERTIES. IN NO EVENT WILL THE SUBMISSION OF THE EVALUATION MATERIAL OR DRAFT PURCHASE AGREEMENT CREATE ANY OBLIGATION OR LIABILITY UPON SELLER OR JLL CANADA WHATSOEVER. WE EXPRESSLY ACKNOWLEDGE AND AGREE THAT: i) THE SELECTION OF THE WINNER OF THE BID PROCESS IS AT THE SOLE DISCRETION OF THE SELLER ii) THE SELLER IS UNDER NO OBLIGATION TO ACCEPT ANY PROPOSAL RECEIVED AS A RESULT OF THE BID PROCESS OR TO SELECT/AWARD A PURCHASER IF IT CHOOSES NOT TO FOR ANY REASON iii) THAT JLL CANADA AND ITS REPRESENTATIVES ARE NOT REQUIRED TO EXPLAIN WHY A PARTICULAR BIDDER WAS OR WAS NOT SUCCESSFUL UNDER THE BID PROCESS UNLESS IT HAD FIRST RECEIVD INSTRUCTIONS IN WRITING FROM THE SELLER TO DO SO AND iv) WE SHALL INDEMNIFY AND HOLD JLL CANADA, ITS PARENT AND AFFILIATES, REPRSENTATIVES AND THE SELLER HARMLESS FROM ANY AND ALL LOSES, COSTS AND DAMAGES (INCLUDING LOSS OF PROFITS/COSNEQUENTIAL DAMAGES) THAT MAY OCCUR AS A RESULY OF US NOT BEING AWARDED THE RIGHT TO PURCHASE THE PROPERTIES UNDER THE BID PROCESS FOR ANY REASON.

15.  The provisions of this Agreement shall survive any termination of our review of the Evaluation Material. Without the prior consent of Seller, neither we nor any of the Recipients shall communicate (regarding the proposed transaction, the Seller or the Properties) with (a) any employee, manager or consultant of the management company retained by Seller to manage the Properties, (b) any tenant, subtenant, or other occupant of the Properties, (c) any lender (or any loan participant of any such lender) to Seller, (d) any other third party other than one of our representatives, or (e) any partner or fellow member of Seller.

16.   The Recipients agree not to visit the Properties, other than areas open to the general public, without prior notice being given to and permission provided by JLL Canada and Seller.

17.   No failure or delay by one party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. No waiver by any party will operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver.

18.   If any term or provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement (which shall remain in full force and effect, unamended, provided that such determination does not eliminate the general intent of this Agreement) or invalidate or render unenforceable such term or provision in any other jurisdiction.

19.   This Agreement is binding upon and shall enure to the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the other party.  This Agreement may not be amended, restated, supplemented or otherwise modified except by written agreement signed by all parties, save and except in conjunction with a sale of all or substantially all of any party’s assets or shares, or in conjunction with an amalgamation, merger or corporate reorganization of any party (and, in any such circumstance, only to the extent necessary to reflect such event).

20.   This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous agreements, understandings, representations and warranties, both written and oral, relating to the subject matter herein. If any conflict or inconsistency now or hereafter exists between the terms of this Agreement and the terms or conditions (including terms of use, license agreements and analogous terms) of any electronic data room or other electronic repository established from time to time in connection with the Purpose to facilitate disclosure of the Evaluation Material, the terms of this Agreement shall govern and prevail to the extent necessary to resolve such conflict or inconsistency.

21.   This Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws principles thereof, and for all purposes be interpreted as an Ontario contract. The Seller and the Recipient(s) irrevocably and unconditionally submits to and consents to the non-exclusive jurisdiction of the courts of the Province of Ontario sitting in the City of Toronto for any dispute or matter related to this Agreement. Nothing herein shall prevent or prejudice the Seller from bringing an action or commencing a claim in any other jurisdiction. To the extent permitted by law, the Recipient irrevocably and unconditionally waives any defence of forum non conveniens and any application of contra proferentem. It is the express intention of the parties that this Agreement is written in English. Les parties s’entendent expressément que ce contrat soit rédigé en anglais.

22.   Nothing in this Agreement shall: (a) constitute or create any joint venture, partnership or other type of business entity or relationship between the parties, (b) require the Seller to provide any information (including Confidential Information) to the Recipient, or (c) require the parties to enter into any transaction.

23.   This Agreement may be executed electronically and in any number of counterparts, each of which shall constitute and original and all of which, when taken together, shall constitute one and the same binding instrument.

Agreed to and accepted this day of 2022.