East Central Scotland Hotel
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Strictly Private & Confidential
By Email only
Our ref: DC0005
28 Winchester Avenue
T:01786 820 301
Drysdale & Company has been instructed to market an established hotel business in the east of Scotland (the Subjects) that you or your retained clients may be interested in.
As agent for the vendor (the Seller), we are in a position to make available certain confidential information about the opportunity. This letter relates to information provided at any time and from time to time supplied by us or 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 sale of the Subjects, which is defined as ‘the Transaction’, (a) the Seller and its and our respective officers, employees, advisers, agents and their 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 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.
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 Seller or to those of your officers, employees, group undertakings, agents and advisers and the officers, employees and advisers of any of those group undertakings who strictly need access to it for the purpose of furthering the Transaction (your Authorised Recipients), and only to the extent that they need that access, 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.
Neither you nor any of your Authorised Recipients will, without the Seller’s prior written consent:
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
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 Subjects.
The undertakings in paragraphs 1 and 2 above will not apply to Information which:
At the time of supply is in the public domain; or
Subsequently comes into the public domain, except through breach of the undertakings set out in this letter; or
Is already in your lawful possession or that of an Authorised Recipient (as evidenced by written records); or
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 t; or
Is required to be disclosed by law, regulation or any government or competent regulatory authority, as long as you or the Authorised Recipient making such disclosure notifies the Seller on the proposed form, timing, nature and purpose of the disclosure;
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 by you on your own behalf and as agent for each of your officers, employees and group undertakings.
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 be certified in writing to us by an authorised officer supervising it. The undertakings in this paragraph shall not apply to Information which you or an Authorised Recipient must retain under applicable law, rule or regulation, including the rules of a professional body.
Neither you or any of your Authorised Recipients will, without the Seller’s prior written consent:
Directly or indirectly make or have any contact whatsoever in relation to the Subjects 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 of or to any of them in relation to the premises in the 12 months preceding the date of this letter (except to the extent that our discussions result in you buying the business or
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 officer or senior executive of the Seller.
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 the 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.
Nothing in this letter will prevent you or the Seller from disclosing information in relation to the Transaction to your or its employees or the employees of your or its respective group undertakings or to representatives of such employees in accordance with any applicable procedure for informing and consulting employees, provided that such employees or representatives are required to keep that information strictly confidential and that you take all reasonable steps to disclose only the minimum amount of information required to comply with such procedure.
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 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.
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 paragraphs 6(b) and 7, such undertakings shall survive for a fixed period of two years from the date of this letter.
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.
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.
This letter, the relationship between the parties and the conduct of the procedure for the sale by us of the Subjects shall be governed by, and construed in accordance with, Scots Law, and each party irrevocably submits to the exclusive jurisdiction of the Scottish courts.
Please confirm your agreement by clicking on the ACCEPT button or DECLINE if you would not agree to the terms set out above.
Stuart Drysdale MRICS
For and on behalf of
Drysdale & Company
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