Ares Management Limited
6th Floor, 10 New Burlington Street. London, W1S 3BE
In connection with a potential transaction (the “Proposed Transaction”) involving ibis London Luton Airport (the “Project”), Ares Management Limited and its affiliates (collectively, the “Disclosing Party”) desire to make certain Information (as defined below) about the Project available to you (the “Recipient”). As a condition to the Information being furnished to Recipient and/or its Representatives (as defined below), and in consideration of the mutual covenants and agreements set forth herein, Recipient agrees as provided in this agreement (this “Agreement”):
1. Recipient agrees to treat confidentially any information regarding the Project disclosed to it and/or the Proposed Transaction that is furnished to Recipient or its Representatives by or on behalf of Disclosing Party or its Representatives in connection with Recipient’s consideration of the Proposed Transaction, whether written or oral and whether furnished before or after the date hereof, and regardless of the form of communication or the manner in which it is so furnished (collectively, the “Information”), and to use such Information solely in connection with Recipient’s evaluation (and consummation, as applicable) of the Proposed Transaction and for no other purpose. The term “Information” also includes (a) Recipient’s involvement in or consideration of the Proposed Transaction and (b) the fact that Information has been made available to Recipient or its Representatives about the Project and/or the Proposed Transaction. The term “Information” does not include information that (w) is or becomes generally available to the public other than as a result of disclosure by Recipient or its Representatives in violation of this Agreement, (x) was within Recipient’s possession on a non-confidential basis prior to its disclosure by Disclosing Party or its Representatives to Recipient pursuant hereto, (y) becomes available to Recipient on a non-confidential basis after the date hereof from any third party not bound by a confidentiality agreement with Disclosing Party with respect to such information or (z) was developed by Recipient independently of, and without reference to, any Information received hereunder.
2. Recipient agrees not to disclose Information or Notes (defined below) to any other person or have any communications whatsoever with any other person concerning the Proposed Transaction, providedthat Recipient may disclose Information to the Recipient’s affiliates and its and its affiliates’ respective directors, managers, officers, partners, employees, agents, representatives, attorneys, professional advisors (including financial advisors, accountants, and consultants), insurers, and potential sources of financing and/or capital (such parties actually receiving Information from the Recipient or at its direction, collectively, Recipient’s “Representatives”) as, in Recipient’s reasonable judgment, strictly have a need to review the Information for the purpose of assisting Recipient in evaluating the Project or the Proposed Transaction. Recipient agrees to cause its Representatives and also agrees to be responsible for any breach of this Agreement by any of its Representatives. Recipient agrees to notify Disclosing Party of any such breach and the identity of the breaching party as promptly as possible following such breach.
3. Except as required by Law, the Recipient shall ensure that any third party or any Representative to whom it discloses Information first enters into a written back-to-back agreement with the Recipient containing confidentiality obligations as those set forth in this Agreement.
4. Recipient agrees to and agrees to direct its Representatives to, upon the written request of Disclosing Party, destroy or return, at Recipient and its Representatives sole option, all Information and any copies thereof, as well as all notes, analyses, compilations, studies, interpretations, documents or records containing, referring, relating to, based upon or derived from such Information, in whole or in part (collectively, “Notes”). Notwithstanding the foregoing, Recipient and its Representatives may retain Information as may be required by (a) law, regulation or legal process (collectively, “Law”) (b) bona fide written internal document retention policies or (c) automatic electronic archiving or back-up systems; provided that any retained Information shall remain subject to the confidentiality provisions contained herein for any retention period.
5. Notwithstanding anything to the contrary set forth in this Agreement, Recipient and its Representatives shall not call, write or meet with, or have any other contact with any person identified in the Information or in connection with the Information, including, without limitation, any suppliers, commercial contract counterparties, owners, employees, franchisors, lender, loan participant, investor, borrower, obligor, guarantor, property manager, leasing agent, tenant or their respective legal counsel, without the prior written consent of Disclosing Party; provided that nothing in the foregoing shall prohibit communications unrelated to the Proposed Transaction.
6. In the event that Recipient or any of its Representatives are requested or required by Law to disclose any Information, Recipient agrees to provide Disclosing Party with prompt written notice of such request, unless such notice is prohibited by Law. Recipient agrees to cooperate with Disclosing Party, and to cause its Representatives to so cooperate, as applicable, in any reasonable effort to obtain a protective order or other similar relief with respect to any possible disclosure, and in no event will Recipient or any Representative, as applicable, oppose action to obtain a protective order or other relief to prevent disclosure of the Information or to obtain reliable assurance that the Information will be afforded confidential treatment. If Recipient or a Representative is compelled to disclose Information, Recipient or its Representative, as applicable, agrees to disclose only so much of the Information as, in the opinion of its legal counsel, is required to be disclosed and use all reasonable efforts to ensure any Information so disclosed is afforded confidential treatment.
7. Recipient acknowledges that Disclosing Party and each of its Representatives makes no express or implied representation or warranty as to the accuracy or completeness of the Information. Recipient agrees that Disclosing Party and its Representatives are not liable to Recipient or its Representatives for any reason relating to or resulting from the use of the Information, or any errors therein or omission therefrom. The Information does not purport to contain a thorough description of the Project or the Proposed Transaction, and reference should be made to the actual transaction documents and files as and when available for a more thorough statement of the terms, conditions, history and status of the Project and the Proposed Transaction.
8. The parties hereto agree that money damages might not be a sufficient remedy for any breach of this Agreement by Recipient or its Representatives, and that in addition to all other available legal or equitable remedies, Disclosing Party shall be entitled to seek equitable relief, including injunction and specific performance, for any breach of the provisions of this Agreement.
9. In the event of any litigation concerning this Agreement, the prevailing party as determined by a court of competent jurisdiction in a final non-appealable order or judgment shall be entitled to be reimbursed by the non-prevailing party for its reasonable, documented and out-of-pocket legal fees and expenses incurred in connection with such litigation.
10. The provisions of this Agreement shall survive termination of any discussions between the parties hereto, the return or destruction of Information or any termination of any other agreement, whether in effect prior to or after the date of this Agreement, until the earlier of (i) two (2) years from the date hereof and (ii) the date the parties hereto execute a written definitive agreement with respect to the Proposed Transaction.
11. For a period of two (2) years from the date of this Agreement, the Recipient agrees not to solicit, hire, or attempt to hire any senior employee of the Disclosing Party, or encourage any such employee to leave their employment with the Disclosing Party, without the prior written consent of the Disclosing Party.
12. This Agreement shall be governed and construed by the laws of England & Wales applicable to contracts executed in and to be performed in that country. If any provision or portion of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which, taken together, shall constitute one and the same instrument. A facsimile or pdf signature shall be equivalent to an original signature.
13. Should Recipient has executed a separate confidentiality agreement in relation to the Project, in the event of any inconsistency between the terms of this Agreement and the terms of such separately executed agreement, this Agreement shall prevail.
14. If Recipient is in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute Recipient’s agreement with respect to the matters set forth herein. Delivery of the Information will confirm Disclosing Party’s agreement with the terms and conditions contained herein.
By clicking “accept” on this website, Recipient has confirmed Recipient’s acceptance of the above terms.
