PROPERTY: Ibis Portsmouth Centre, Winston Churchill Avenue, Portsmouth, PO1 2LX (the “Property”)
Christie & Co are confidentially marketing a business opportunity in which you have shown interest.
As agent for the vendor company Essendi UK Hotels 2 Limited (the Seller) and the companies within the Essendi Group, we are prepared to make available to you certain confidential information about the Property and related business in question. 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 potential sale of the Property and the associated business operated at the Property (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 Seller and its and our respective officers, employees, advisers, agents and representatives (b) each of the Seller’s and its 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. Group undertaking shall be construed in accordance with s1161 of the Companies Act 2006.
In consideration of our disclosing the Information to you, you agree with and undertake to us, in our capacity as agent for the Seller, as follows. The undertakings in this letter are given in our favour and in favour of our Connected Persons.
1.
(a) You will hold the Information in strict confidence to the same standard as you would keep confidential your own confidential information.
(b) You will not disclose, copy, reproduce or distribute any of it to any person other than: (i) as permitted in writing by the Seller; or (ii) to those of your officers, employees, group undertakings, agents, advisers and financial institutions who are considering providing you with finance for the Transaction and the officers, employees and advisers of any of those group undertakings, in each case who strictly need access to it for the purposes of furthering the Transaction (your Authorised Recipients), and then only to the extent that they need that access, they are informed of 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 Seller’s 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 or copy the Information for any purpose other than to assess your interest in, and negotiate the terms of, the Transaction (the Purpose); 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 Property.
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 Seller or any of its Connected Persons an obligation of confidence in relation to it; or
(e) (and then only to the extent that it) 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 Seller first on the proposed form, timing, nature and purpose of the disclosure.
4. You will procure so far as you are legally able that each of your Authorised Recipients who receives any Information is aware of and adheres to the terms of this letter. On 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 the Seller and each of its 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 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, upon our request, be certified in writing to us by an authorised officer supervising it. The undertakings in this paragraph shall not apply to the extent that you or an Authorised Recipient must retain a copy of the Information under any applicable law, rule or regulation, including the rules of a professional body.
6. Neither you nor any of your Authorised Recipients will, without the Seller’s prior written consent:
(a) directly or indirectly make or have any contact whatsoever in relation to the Property or the Transaction with any officer or employee of the Seller or any of its group undertakings or any person who has been a customer or supplier, contractor or sub-contractor or landlord of or to any of them in relation to the Property in the 12 months preceding the date of this letter (except to the extent that our discussions result in you completing the Transaction); 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 this letter, solicit, endeavour to entice away, employ or offer to employ directly or indirectly any head office personnel or the general manager or any head of department working at the Property. This shall not prevent you from employing any such person who voluntarily applies for a position that you (or a recruitment company on your behalf) advertises to the public generally provided that you (or a recruitment company on your behalf) do not specifically target any such person.
7. If you wish to inspect the Property or to make arrangements for any valuation, survey or other investigation of the Property to be carried out by you or your advisers which involves visiting the Property, you must make arrangements for such visits only with our prior written consent. If we require, you and your professional advisers may only visit the Property accompanied by one or more of our Connect Persons and only at such times as we specify.
8. 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 us and with each of our Connected Persons that 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 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 subject to which any Teaser or Information Memorandum may be issued and that the terms of this disclaimer may not be terminated or rescinded or varied without the prior written consent of our 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 we nor any of our respective Connected Persons shall owe any duty of care to you or any other person.
9. 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 will be entitled to seek 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.
10. You acknowledge and agree that the undertakings set out in this letter will survive completion of negotiations, whether or not the Transaction is implemented. Except in the case of paragraph 6(b), such undertakings shall survive for a fixed period of two years from the date of this letter.
11. 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.
12. 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) as if they were party to it but 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 other than the Seller.
13. Save as provided in paragraph 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, the relationship between the parties and the conduct of the procedure for the sale by us of the Property and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with any of the same shall be governed by, and construed in accordance with, English law, and each party irrevocably submits to the exclusive jurisdiction of the English courts in connection with the same.
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