CONFIDENTIALITY AGREEMENT
Doubletree by Hilton Newbury North
Strictly Private & Confidential
You have expressed an interest in acquiring the hotel known as Doubletree by Hilton Newbury North (the Hotel or Business). As agent for the vendors of the Hotel (the Sellers), we are prepared to make available to you certain confidential information about the Transaction. This letter relates to information at any time and from time to time supplied by us or by any of our Connected Persons orally, in writing or in any other form to you or your Authorised Recipients 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 Sellers and their and our respective officers, employees, advisers, agents and representatives (b) each of the Sellers and their and our respective group undertakings and their respective officers, employees, advisers, agents and representatives; and (c) officers, employees and partners of any such adviser, agent or representative or of their respective group undertakings, in each case to the extent that it is made apparent that such persons are acting on behalf of the Sellers.
Group undertaking shall be construed in accordance with s259 of the Companies Act 1985.
In consideration of our disclosing the Information to you, you agree with and undertake to us as follows. The undertakings in this letter are given in our favour and in favour of our Connected Persons.
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 Sellers or to the extent disclosure is to your employees, directors, officers, group undertakings, insurers, outside advisors (including lawyers and accountants), investors or financiers or to your affiliates, parallel funds, funds that own or control (directly or indirectly) you or any investment committee, advisory board, limited partner, general partner or manager of such fund that is participating in, or advising in connections with the Transaction and reasonably need access to the Information for the purposes of furthering the Transaction (your Authorised Recipients) 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 Sellers’ 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
(b) 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 except where our discussions result in your buying the Hotel.
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 Sellers or any of their 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 you or the Authorised Recipient making such disclosure consults the Sellers (where permitted by law and where reasonably practicable in the circumstances to do so) first on the proposed form, timing, nature and purpose of the disclosure; or
(f) if the Transaction is implemented by you, relates solely to the purchase of the Hotel.
4. You will be responsible for ensuring that each Authorised Recipient to whom Information is disclosed treats the Information in a confidential manner and in accordance with the terms of this letter. Accordingly, you will be vicariously liable for each and every Authorised Recipient to whom Information is disclosed that does not treat the Information in a confidential manner in accordance with the terms of this letter.
5. Upon receipt of a written notice from us to you, you and your Authorised Recipients will (within a commercially reasonable period) either (at our option, acting reasonably) destroy or return to us on 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 confirmed in writing to us by one of your directors. 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 and nor will it apply to Information that is electronically stored in any automatic back-up system or archive so long as such file is not generally accessible beyond the need for disaster recovery or similar operations, is otherwise required to be kept in accordance with a bona fide document retention policy, or for compliance reasons.
6. Neither you nor any of your Authorised Recipients will, without the Sellers’ prior written consent:
(a) discuss the Transaction with any officer or employee of the Sellers or the Business, any of its group undertakings or any person who has been a customer or supplier, contractor or sub-contractor of or to any of them in relation to the Hotel in the 12 months preceding the date of this letter (except to the extent that our discussions result in you buying the Hotel), unless expressly authorised to do so by the Sellers;[1] or
(b) While our discussions are taking place or, if the Transaction is not implemented for any reason (for a period of one year after the date of negotiations between us ceasing), solicit, endeavour to entice away, employ or offer to employ directly or indirectly any officer or senior executive of the Sellers save that an offer made to a person in connection with an advertisement of a post available to a member of the public generally or made pursuant to an approach by a recruitment agency shall not, in either case, constitute a breach of this restriction provided that you have not initiated any contact with that person (or any person acting on their behalf).
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. Neither we nor any of our Connected Persons shall have any liability to you or any other person resulting from the use of Information by you and/or them. The terms of this disclaimer may not be terminated or rescinded or varied without the prior written consent of our Connected Persons. Save as expressly set out in this letter, neither we nor any of our respective Connected Persons shall owe any duty of care to you nor any other person.
8. Without affecting any other rights or remedies that they 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 may at the court’s discretion 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.
9. You acknowledge and agree that the undertakings set out in this letter shall cease upon the earlier of: (a) consummation of the Transaction; (b) on the first anniversary of the date of negotiations between us ceasing.
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. The Sellers 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) on its own behalf and on behalf of our Connected Persons, subject to and in accordance with:
(a) The terms of paragraph 13 (Governing Law and Jurisdiction); and
(b) 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. Save as provided in paragraph 11, 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.
13. This letter, the relationship between the parties and the conduct of the procedure for the sale by us of the Hotel shall be governed by, and construed in accordance with, English law, and each party irrevocably submits to the exclusive jurisdiction of the English courts.
14. 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, the latter shall prevail.
Yours Faithfully,
Christie & Co
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