CONFIDENTIALITY AGREEMENT
PROJECT ROUNDTABLE
Strictly Private & Confidential
You have expressed an interest in acquiring Project Roundtable (the “Hotel” or “Business”) (the “Transaction”). Christie & Co (“the Agent”), as the agent for the vendors of the Hotel or Business (the “Sellers”), are prepared to make available to You certain confidential information about the Transaction including without limitation confidential or proprietary information relating to the business, affairs, financial or trading position, assets, intellectual property rights, customers, clients, suppliers, employees, plans, operations, intentions or market opportunities the Business which at any time and from time to time will be by the Agent or by any of the Agent’s Connected Persons orally, in writing or in any other form to You or your Authorised Recipients (as defined below) in connection with the Transaction (the “Information”).
In this letter, Connected Persons means, in each case, to the extent that they are involved in the Transaction, (a) the Agents and our respective officers, employees, advisers, agents and representatives (b) each of the Agent’s respective Affiliates (as defined below) and their respective officers, employees, advisers, agents and representatives;
“Affiliate” shall be construed as in relation to a party, any group undertaking of the relevant party, in accordance with s1161 of the Companies Act 2006.
In consideration of the Agents disclosing the Information to You, You agree with and undertake to the Agent as follows:
1. You will hold the Information in strict confidence and will not disclose, copy, reproduce or distribute any of it to any person other than as permitted in writing by the Agent or to those of yours and your Affiliates’ officers, employees, agents, funders and advisers and the officers, employees who strictly need access to it for the purposes of furthering the Transaction (your “Authorised Recipients”), and only to the extent that they need that access, on the terms of this letter and on the basis that they themselves will not disclose, copy, reproduce or distribute it to any person who is not an Authorised Recipient.
2. Neither You nor any of your Authorised Recipients will, without the Agents’ prior written consent:
(a) reveal to any person other than an Authorised Recipient that negotiations are taking place in relation to the Transaction or any information concerning the status or progress of such negotiations;
or use the Information for any purpose other than to evaluate the Transaction; in particular You will not use the Information in the future conduct of your trading operations. You undertake to ensure that all Information is protected with the security measures and a degree of care that would apply to your own confidential information, in any event, no less than a reasonable degree of care.
3. The undertakings in paragraphs 1 and 2 above will not apply to Information which:
(a) at the time of supply is in the public domain; or
(b) subsequently comes into the public domain, except through breach of the undertakings set out in this letter; or
(c) is already in your lawful possession or that of an Authorised Recipient (as evidenced by written records); or
(d) subsequently comes lawfully into your possession or that of an Authorised Recipient from a third party who does not owe the Agent or any of the Agent’s Connected Persons an obligation of confidence in relation to it; or
(e) is required to be disclosed by law, regulation or any governmental or competent regulatory authority, as long as, to the extent legally permissible, You or the Authorised Recipient, before making such disclosure consults the Agents first on the proposed form, timing, nature and purpose of the disclosure.
4. You are legally liable for each of your Authorised Recipients and You will procure that each of your Authorised Recipients who receive any Information is aware of and adheres to the terms of this letter. On the Agent’s request, You will keep us informed of their identity. The undertakings in this letter are given by You on your own behalf and as agent for each of your Authorised Recipients, and with their full knowledge and authority. You will indemnify and hold each of the Agents and each of their Connected Persons harmless, on an after tax basis, from and against all claims, demands, liabilities, losses, damages, costs and expenses suffered or incurred by it or any of its Connected Persons arising directly or indirectly from a breach of this letter by You or any of your Authorised Recipients.
5. You and your Authorised Recipients will destroy or return to the Agent on the Agent’s written demand any document (including any note, analysis or memorandum prepared by any of you) containing Information and any copy which may have been made and take reasonable steps to expunge all Information from any computer, word processor or other device containing Information. Any destruction of Information will be certified in writing to the Agents by an authorised officer supervising it. The undertakings in this paragraph shall not apply to Information which You or an Authorised Recipient must retain under any applicable law, rule or regulation, including the rules of a professional body, provided this will only be accessible to your legal and compliance personnel.
6. Neither You nor any of your Authorised Recipients will, without the Agent’s prior written consent, directly or indirectly:
(a) make or have any contact whatsoever in relation to the Hotel or the Transaction with any person known to you who has been a customer or supplier, contractor or sub-contractor of or to any of them in relation to the Transaction in the 12 months preceding the date of this letter
(b) employ or offer to employ, or enter into a contract for the services of an employee of the Seller, or procure or facilitate the making of any such offer by any other person;
(c) entice, solicit or procure any employee to leave the employment of the Seller, or make any attempt to do so, whether or not the employee would commit a breach of contract in leaving their employment;
7. You understand that the Information does not purport to be all inclusive and that no representation or warranty is made as to the accuracy, reliability or completeness of any of the Information. Accordingly You agree with the Agent and with each of the Agent’s Connected Persons that neither the Agent nor any of the Agent’s Connected Persons shall have any liability to You or any other person resulting from the use of Information by You and/or them and, without prejudice to the generality of the foregoing, that You and your Authorised Recipients will be bound by the terms of any disclaimer of liability on our part and/or on the part of any of our Connected Persons. The terms of this disclaimer may not be terminated or rescinded or varied without the prior written consent of the Agent’s Connected Persons. This paragraph will not exclude any liability for, or remedy in respect of, fraudulent misrepresentation.
Save as expressly set out in this letter, neither the Agents nor any of the Agent’s respective Connected Persons shall owe any duty of care to You nor any other person.
8. Without affecting any other rights or remedies that the Agents may have, you acknowledge that a person with rights under this letter may be irreparably harmed by any breach of its terms and that damages alone may not necessarily be an adequate remedy. Accordingly, a person bringing a claim under this letter will be entitled to the remedies of injunction, specific performance and other equitable relief, or any combination of these remedies, for any threatened or actual breach of its terms, and no proof of special damages will be necessary to enforce this letter.
9. You acknowledge and agree that the undertakings set out in this letter will survive until either the earlier of two (2) years from the date of this letter or when You enter into a definitive sale and purchase agreement with respect to the Transaction containing confidentiality obligations.
10. If any provision of this letter is held to be invalid or unenforceable, that provision shall (so far as it is invalid or unenforceable) be given no effect and shall be deemed not to be included in this letter, but without invalidating any of the remaining provisions.
11. Each of our Connected Persons shall have the right under the Contracts (Rights of Third Parties) Act 1999 to enforce the terms of this letter (as amended from time to time), subject to and in accordance with:
(a) the terms of paragraph 13 (Governing Law and Jurisdiction); and
(b) save as provided in paragraph 7, the term that the parties to this letter may by agreement terminate or rescind or vary it in any way without the consent of any of our Connected Persons.
12. This letter agreement and the terms and the undertakings herein is also made for the benefit of, and is intended to confer a right on, the Seller and such that the Seller may enforce this Agreement directly against You or any of your Authorised Recipients as if they were a party to this letter agreement.
13. Save as provided in paragraph 11 and 12, a person who is not a party to this letter shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
14. This letter and the relationship between the parties shall be governed by, and construed in accordance with, English law, and each party irrevocably submits to the exclusive jurisdiction of the English courts.
15. Should You have executed a separate confidentiality agreement in relation to the Hotel, in the event of any inconsistency between the terms of this letter and the terms of such separately executed agreement, this letter shall prevail.
16 No variation of this letter agreement shall be effective unless it is in writing, signed by the Agent and expressly states that it is amending this agreement.
Please confirm your agreement to the above terms by clicking “Accept”.
