CBRE (“Adviser”) has been retained by the Receiver (hereafter “THE RECEIVER”) to act as agent with respect to the solicitation of offers in connection with a proposed sale of:
ALL THAT AND THOSE the apartments known as 62 Apartments, in four Blocks, The Chestnut, The Oak, The Walnut & The Silver Birch, the Underground Carpark and related Commercial elements at Park Avenue, South Douglas Road, Cork being all of the lands comprised in Folio 18049 of the Register of Freeholders County Cork and more particularly described (for identification purposes only) on the maps attached to this Agreement at Schedule One and Two
(the “Proposed Transaction”).
In this agreement, “Informational Materials” means all information regarding the Proposed Transaction, including (without limitation) all information contained in any Information Memorandum which is issued to you, the undersigned (the “Potential Purchaser”) in respect of the Proposed Transaction, all financial, technical, operational, commercial and management data, know-how, marketing materials (along with any photographs, maps and artwork contained therein) and all legal documentation pertaining to the title to any properties which is directly or indirectly disclosed in whatever form (including, without limitation, in written, oral, visual or electronic form, or on tape or disk) by or on behalf of (a) THE RECEIVER and/or Adviser or any of their officers, members, employees or professional advisers; (b) government bodies or agencies or any of their officers, members, employees or professional advisers; or (c) any Existing Lending Institution or any of their officers, members, employees or professional advisers, to the Potential Purchaser, and includes the fact that the Proposed Transaction is under consideration, the fact that such information has been disclosed to you and that discussions or negotiations have or will occur regarding the Proposed Transaction (together with the status of any such discussion or negotiations).
Informational Materials will not include information or documents that (a) the Potential Purchaser can demonstrate were known by the Potential Purchaser prior to the disclosure thereof; (b) came into the possession of the Potential Purchaser from a third party which is not under any obligation to maintain the confidentiality of such information; (c) has become part of the public domain through no act or fault of the Potential Purchaser in violation hereof; or (d) the Potential Purchaser can demonstrate were independently developed by or for the Potential Purchaser without the use of the Informational Materials or any of them.
THE RECEIVER will not permit the disclosure of any Informational Materials to a Potential Purchaser unless and until the Potential Purchaser has executed this agreement. Upon Adviser’s receipt of this executed agreement, certain Informational Materials will be provided for the Potential Purchaser’s consideration in connection with the Proposed Transaction, subject to the conditions set forth herein.
- All Informational Materials shall be held in the strictest confidence and shall be used solely for the purpose of the Potential Purchaser’s consideration of a potential Purchasing event and shall not be copied or reproduced except as necessary for the consideration of the Purchasing.Within three days of THE RECEIVER’s or Adviser’s request, the Potential Purchaser shall either (a) return all Informational Materials and copies thereof (whether made in physical or digitised form, and including any notes made from such Informational Materials) to Adviser, or (b) destroy all Informational Materials and copies thereof (whether made in physical or digitised form, and including any notes made from such Informational Materials) and provide Adviser with written certification of such destruction.
- The Informational Materials may be disclosed to the Potential Purchaser’s employees, legal counsel and institutional lenders (“Related Parties”) only on a “need-to-know” basis for the purpose of evaluating the potential purchase of the Properties; provided, however, that the Potential Purchaser shall (a) inform such Related Parties of the confidential nature of the Informational Materials; (b) ensure that each such Related Party shall comply with the terms of this agreement; and (c) shall be responsible for a breach of this agreement caused by such Related Parties.
- The Potential Purchaser and the Related Parties shall ensure that all Informational Materials are at all times protected with security measures and a degree of care that apply to their own confidential information, and shall keep the Informational Materials separate and under their respective control and in their possession.
- For the purpose of this Agreement, “Data Protection Law” means any applicable legislation in force from time to time which implements European Community Directive 95/46/EC and Directive 2002/58/EC, and any amendments, revisions or replacements in respect of the foregoing, including, in Ireland, the Data Protection Acts 1988 and 2003. To the extent that the Informational Materials include personal data (as defined in any applicable Data Protection Law) the Potential Purchaser warrants and represents to THE RECEIVER that it shall process such personal data only for the purposes of the Proposed Transaction and subject to the terms and conditions of this Agreement and it shall not disclose personal data to any person other than as permitted by clause 2 above. Without limiting the foregoing, the Potential Purchaser shall not transfer any Informational Materials containing personal data outside the European Economic Area unless it has first put in place measures that demonstrate that the transfer and subsequent processing of such data complies in full with Data Protection Law.
- If any court or governmental authority requires the Potential Purchaser to disclose any portion of the Informational Materials, the Potential Purchaser shall, to the extent permitted by law and legal process, (a) provide THE RECEIVER with prompt written notice of such requirement; and (b) cooperate with THE RECEIVER in a commercially reasonable manner in obtaining any protective order or other remedy sought by THE RECEIVER with respect to such requirement. If no such protective order or other remedy is obtained, then the Potential Purchaser may disclose only that portion of the Informational Materials that in the reasonable opinion of the Potential Purchaser’s legal counsel is legally required to be disclosed, and shall exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Informational Materials.
- The Potential Purchaser understands that (a) this agreement is made for the benefit of THE RECEIVER, Adviser and that either party may enforce its provisions; (b) all communications, regarding the Proposed Transaction, including requests for information or meetings shall be submitted only to Adviser; (c) the Proposed Funder shall not contact any employees, directors officers or other employees of THE RECEIVER regarding the Proposed Transaction without Adviser first having given written consent; and (d) the Potential Purchaser shall not contact any party involved with the Proposed Transaction without the written consent of THE RECEIVER, Adviser .
- For the avoidance of doubt, all information and documentation contained in the electronic data room for the Proposed Transaction shall constitute Informational Materials. It may be a condition of gaining access to such data room that the Potential Purchaser and the Related Parties accept and comply with data room rules, and the Potential Purchaser hereby undertakes to comply with any such data room rules.
- The Informational Materials do not purport to be all-inclusive or to contain all information that a prospective Funder may desire. The Potential Purchaser understands and acknowledges that none of THE RECEIVER, or Adviser, nor any of their members, employees, professional advisors or agents (the “Sell Side Parties”), make any representations or warranties as to the accuracy or completeness of the Informational Materials and that the information has not been independently verified by THE RECEIVER, or Adviser. The Informational Materials are not guaranteed as to completeness or accuracy nor are they intended as a substitute for independent due diligence and analysis by the Potential Purchaser. The Potential Purchaser acknowledges that none of Sell Side Parties has any responsibility to update the Informational Materials.
- The Potential Purchaser hereby agrees to indemnify and keep indemnified THE RECEIVER, and Adviser and their respective affiliates, shareholders, directors, officers, employees, agents and successors and assigns (the “Indemnitees”) against and from any loss, damage, claim, liability or expense, (including legal fees and expenses), arising out of any breach of any of the terms of this agreement or arising from any broker, agent or finder claiming by or through the Potential Purchaser.
- The Potential Purchaser acknowledges that the Proposed Transaction is subject to withdrawal from the market, change in offering price, prior sale or rejection of any offer because of the terms thereof, lack of satisfactory credit references of any prospective funder, or for any other reason whatsoever, without notice.
- The Potential Purchaser represents and warrants that (i) it is duly incorporated and validly existing under the laws of the jurisdiction in which it is incorporated or formed, and is subject to suit in its own name; (ii) it has the power and authority to enter into this agreement, and (iii) its obligations under and in connection with this agreement constitute its legal, valid, binding and enforceable obligations.
- The Potential Purchaser acknowledges that damages may be inadequate to protect against a breach of this agreement. It is hereby agreed that in the event of any such breach by the Potential Purchaser and/or a Related Party that (a) any or all of THE RECEIVER, and Adviser are entitled to seek specific performance and/or injunctive relief or other available equitable relief as a remedy for any such breach, and (b) the Potential Purchaser shall not oppose the granting of injunctive relief, specific performance or other equitable remedy in favour of any or all of THE RECEIVER, and Adviser.
- No delay, neglect or forbearance by either party to this agreement in enforcing any provision of this agreement shall be deemed to be a waiver or in any way prejudice any rights of that party.
(a) Subject to Clause 6 above, a person who is not a party to this agreement has no right to enforce or enjoy the benefit of any term of this agreement save that the Sell Side Parties may enforce or enjoy the benefit of the terms of paragraph 8; and the Indemnitees may enforce or enjoy the benefit of the terms of paragraph 9.
(b) The provisions of this agreement shall not be amended, varied or waived without the prior written consent of THE RECEIVER.
(c) Subject to sub-paragraph (b) above and notwithstanding any other provisions of this agreement, the parties to this agreement do not require the consent of any Sell Side Party or Indemnitee which is not a party to this agreement to rescind or vary this agreement at any time.
- The obligations in this agreement shall remain binding and in effect for a period of three (5) years from the date hereof.
- This confidentiality agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of Ireland and the Potential Purchaser hereby irrevocably agrees to submit any such dispute, proceedings or claim arising hereunder to the exclusive jurisdiction of the Irish courts.
By clicking on the “Accept and Submit" button, on the registration form, Potential Purchaser acknowledge that they have read, understand, and agree to the terms and conditions set out in this agreement.