Confidentiality Agreement
1. Sea Hero Limited, Comer Group Ireland, TP Fox, Comer Group International, and Galveston being the “Disclosing Parties” have agreed to share certain information with you in connection with 23.7 acre site at Arden Road, Tullamore.
2. As a condition to you and your colleagues being furnished such information, you and your Representatives (as defined below) agree to treat any information in writing, in electronic format or otherwise, whether before or after the date of this letter agreement (the "Evaluation Material") concerning the Portfolio and Proposed Transaction and the proposed terms and conditions thereof (whether prepared by the Disclosing Parties or their affiliates, partners, agents or advisers or by any Disclosing Party or any of its affiliates or our or their respective representatives, partners, agents, employees, directors, officers, advisors, or otherwise) which is furnished to you or any of your employees, directors, officers, agents, your Group Companies or professional advisors (collectively, “Representatives”) by or on behalf of any Disclosing Party or its affiliates or partners or any of the Disclosing Parties’ or their affiliates’ or partners’ respective representatives, agents, employees, directors, officers or advisors accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth.
3.1 The term "Evaluation Material" does not include information which
(i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in breach hereof, or
(ii) was or becomes available to you on a non-confidential basis from a source other than a Disclosing Party or any of their affiliates, partners, representatives, agents, employees, directors, officers or advisors, unless you knew that such source was bound by a confidentiality agreement or other obligation of secrecy with the Disclosing Party with respect to the information; or
(iii) was rightfully in your possession prior to disclosure to you by the Disclosing Party (as can be demonstrated by written records or otherwise to the Disclosing Party’s satisfaction (acting in a reasonable manner)); or
(iv) was developed independently without access to, or use or knowledge of, the information; or
(v) was disclosed by you with the prior consent of the Disclosing Party.
4.1 You hereby agree that the Evaluation Material that you receive will be used by you and your Representatives solely for the purpose of evaluating the Proposed Transaction (the “Permitted Purpose”), and that the Evaluation Material will be kept confidential by you and not disclosed by you to any other person or entity; provided, however, that:
(A) you may disclose such information to your Representatives who need to know such information for the Permitted Purpose provided that:
(i) such Representatives shall be informed by you of the confidential nature of such information,
(ii) the number of Representatives to whom you disclose Evaluation Material will be restricted to what is necessary, and
(B) you and your Representatives will at all times use the Evaluation Material in a manner which with the provisions contained in the Data Protection Acts 1988 and 2003 (the “DPA”) (as amended) any other applicable data protection laws and regulations); and
(C) you shall procure that your Representatives comply with the terms of this letter agreement as if they were a party to it, and you shall be responsible and liable for any breaches of this letter agreement by your Representatives.
4.2 Clause 5.1 does not prohibit disclosure by you or your Representatives if and to the extent only you or your Representatives are compelled to do so by law, a court, regulator/regulatory authority, supervisory authority, stock exchange or by any tribunal, enquiry or investigation by any governmental, official or regulatory body or other authority with jurisdiction over you or your Representatives provided that (i) any such disclosure shall only be the minimum required to be so disclosed and (ii) you consult with the relevant Disclosing Parties as to the proposed form, timing, nature and purpose of the disclosure unless it is prohibited by applicable law or such competent authority from so consulting with the relevant Disclosing Parties (and if it is so prohibited, it shall notify and/or consult with the relevant Disclosing Parties to the extent legally permitted).
5. In addition, without our prior written consent, you and your Representatives will not disclose to any person (other than your Representatives) either the Disclosing Parties’ or the Disclosing Parties’ affiliates’ or your or your Representatives’ involvement in the Proposed Transaction, the fact that discussions or negotiations are taking place concerning the Proposed Transaction or any of the terms, conditions or other facts with respect to such Proposed Transaction, including the status thereof, and including the fact that any discussions or negotiations are taking place between you and the Disclosing Parties concerning the Proposed Transaction (or the existence of this letter agreement).
6. You shall inform the Disclosing Parties in writing of any unauthorized disclosure of Evaluation Material or other breach of this letter agreement by you or your Representatives promptly upon becoming aware of the same.
7. You understand that none of the Disclosing Parties or any of their affiliates or any of the Disclosing Parties’ or their affiliates’ respective representatives, agents, employees, directors, officers and advisors have made or make any representation or warranty as to the accuracy or completeness of the Evaluation Material. You agree that neither the Disclosing Parties nor any of their affiliates nor any of the Disclosing Parties’ or their affiliates’ respective representatives, agents, employees, directors, officers and advisors shall have any liability to you, any of your Representatives or any other party resulting from the use of Evaluation Material. Nothing in this paragraph shall exclude liability for fraud wilful misconduct, wilful concealment, or fraudulent misrepresentation.
8. In the event you do not proceed with the Proposed Transaction or upon our request at any time, you shall immediately following our written request (i) redeliver to us or destroy or erase in so far as is reasonably and technically possible all written Evaluation Material and any other written material containing or reflecting any information in the Evaluation Material (whether prepared by the Disclosing Parties or any of their affiliates, representatives, agents, employees, directors, officers, advisors or otherwise) provided to you and/or your Representatives and, save where expressly permitted pursuant to this paragraph, neither you nor any of your Representatives will retain any copies, extracts or other reproductions in whole or in part of such written material; and (ii) destroy or erase in so far as is reasonably and technically possible all documents, memoranda, notes and other writings whatsoever prepared by you or your Representatives based on the information in the Evaluation Material, and if requested by any Disclosing Party such redelivery and destruction shall be confirmed in writing to the Disclosing Parties by you save where you are required to do so for legal or regulatory reasons, provided that any Evaluation Material so retained shall remain subject to the provisions of this letter agreement.
9. The parties hereto agree that in the event of a breach of this letter agreement, damages may not be an adequate remedy and each party shall be entitled to seek injunctive relief or a court order to enforce compliance with this letter agreement or to restrain any such breach, whether threatened or actual. Such remedies shall not be deemed to be the exclusive remedy for breach of this letter agreement but shall be in addition to all other remedies available at law or equity.
10. You and your Representatives shall not have any right, power or authority to create, and shall not represent to any person that you or your Representatives have the power to create any obligation, express or implied, on behalf of the Disclosing Parties or any of their affiliates.
11. This letter agreement may be modified or waived only by a separate writing between each of the Disclosing Parties and you expressly so modifying or waiving such agreement.
12. This letter agreement and any non-contractual obligations arising out of or in connection with it shall be governed and construed in accordance with the laws of Ireland and the courts of Ireland shall have exclusive jurisdiction in respect of any disputes arising out of, or in connection with, this letter agreement.
13.You attention is drawn to the rules of the VDR. You acknowledge same and accept the contents therein.
14. You acknowledge and agree that the obligations and undertakings set out in this letter agreement will survive completion of the discussions contemplated by this letter agreement.
