In connection with our consideration of one or more potential transactions between the recipient or any of its affiliates (“Buyer” or “we” or “us”) and the Vendor, being Study Inn Estates Ltd and/or any entity affiliated with or advised by its affiliates (“the Vendor” or “you”) whereby Buyer may make an investment, directly or indirectly, in one or more student housing projects owned by the Vendor in the United Kingdom (each, a “Transaction”), you will be providing us with Confidential Information (as defined below). In consideration of your disclosure of Confidential Information to us and your agreement with and undertaking to us as follows in relation to each Transaction, we agree with and undertake to you as follows in relation to your Confidential Information.
This letter agreement relates to information at any time and from time to time supplied by you or by any of your Connected Persons (in written, visual or electronic form) to us or our Authorised Recipients in connection with each Transaction (“Confidential Information”).
1. Definitions and interpretation
In this letter agreement:
“Authorised Recipients” means: (a) our respective group undertakings and our and their respective parents, officers, directors, consultants, employees, agents, advisers and representatives for whom it would be necessary to have access to the Confidential Information for the Permitted Purpose; and (b) our respective providers of debt and equity finance and their respective officers, employees, agents and advisers for whom it would be necessary to have access to the Confidential Information for the purposes of securing financing in relation to any Transaction.
“Connected Persons” means, in relation to each Party, and in each case to the extent that they are involved in any Transaction: (a) such Party’s group undertakings and such Party’s parents, officers, directors, consultants, employees, advisers, agents and representatives; (b) parents, officers, directors, consultants, employees, agents, representatives and advisers of such Party’s group undertakings; and (c) parents, officers, directors, consultants, employees and partners of any adviser, agent or representative (or of their respective group undertakings) of such Party or of the group undertakings of such Party.
“Copies” means copies of Confidential Information including any document which contains, reflects or is otherwise derived from Confidential Information.
“group undertaking” shall be construed in accordance with s1161 of the Companies Act 2006.
“Parties” means Buyer and Vendor, each being referred to individually as a “Party”.
“Permitted Purpose” means considering, evaluating, negotiating and approving any Transaction.
2. Duty of confidentiality
2.1. We will keep your Confidential Information secret and will not disclose or copy any of it to any person other than as permitted in writing by you or to our Authorised Recipients, on the terms of this letter agreement and on the basis that the Authorised Recipients themselves will not disclose or copy it to any person who is not an Authorised Recipient.
2.2. Buyer agrees that, without Vendor’s prior written consent, neither Buyer nor any Connected Persons of Buyer shall reveal to any person who is not a Connected Person or Authorized Recipient (i) the existence of this letter agreement, (ii) that negotiations are taking place between the Parties or (iii) any information concerning the status or progress of such negotiations.
3. Exceptions
The undertakings in paragraph 2 above will not apply to Confidential Information of which:
3.1.1. at the time of disclosure is publicly available;
3.1.2. subsequently becomes publicly available other than as a result of a breach of this letter agreement;
3.1.3. is already in the lawful possession of us or any of our Connected Persons and such Connected Persons are not bound by a confidentiality agreement with you;
3.1.4. subsequently comes lawfully into the possession of us or any of our Connected Persons from a third party who, to our knowledge, is not under any obligation of confidence in relation to it (including by any legal duty, fiduciary duty or otherwise);
3.1.5.
3.1.6. is independently developed by us or our Connected Persons without the use of Confidential Information; or
3.1.7. is required to be disclosed by applicable law, regulation or by any governmental or competent authority having jurisdiction (and, except as specified in this letter agreement to the contrary, nothing in this letter agreement will be construed as prohibiting any such disclosure).
Notwithstanding anything to the contrary herein, if any person seeks to compel Buyer or any of our Connected Persons or Authorised Recipients to disclose any Confidential Information under compulsion of law, regulation, or rule, including, but not limited to, stock exchange rules, discovery procedures, depositions, interrogatories, requests for documents, subpoenas, summons, civil investigative demands, search and seizure warrants, or other processes of any court, tribunal, authority, regulatory body or stock exchange, we will promptly notify you thereof prior to any such disclosure so that you may have an opportunity to seek a protective order or other appropriate remedy (provided that the foregoing is legally permitted and not deemed to require that the we refuse to comply with any such disclosure request or demand beyond the time specified for such disclosure). We agree to cooperate with you in any manner which may be reasonably requested by you, at your sole cost and expense, in order to seek any such protective order or other appropriate remedy. If (despite taking all such steps), we, our Connected Persons or our Authorised Recipients are obliged to disclose any Confidential Information to any third party, we will disclose such Confidential Information only to such third party and will seek to disclose only the minimum amount of information consistent with its obligation. We shall provide you with a copy of the proposed disclosure and confirmation that our legal advisers’ opinion is that such disclosure is required.
4. Obligation to procure compliance by Authorised Recipients
We will procure, so far as we are legally able, that those of our Authorised Recipients who receive Confidential Information adhere to the terms of this letter agreement. We will be responsible to you for any breach of the terms of this letter agreement by our Authorised Recipients as if they were each a Party to this letter agreement. However, notwithstanding the above, we will not be responsible, nor have any liability under this letter agreement or otherwise, for any such breach by those of our Authorized Recipients who are not our directors, officers or employees, and have (i) executed a joinder on terms reasonably acceptable to the Vendor, agreeing to be bound by the confidentiality provisions of this letter agreement or (ii) entered into a separate confidentiality agreement with respect to the Confidential Information with the Vendor.
5. Destruction/return of Confidential Information and Copies
If requested in writing by your counsel or an officer of the Vendor, we will, at your option, destroy or return all of the Confidential Information disclosed to us within five (5) business days of such request, including all copies recorded on any electronic media or optical device. Neither we nor our Authorised Recipients will be obliged to destroy, return or erase Copies to the extent that they contain extracts from or references to Confidential Information, or which are only Copies because they refer to any Transaction, or in circumstances where we or they are required to keep them by applicable law, rule or regulation of a professional or regulatory body or securities exchange or internal document retention policies or procedures, provided that this shall not affect each of our or our respective Authorised Recipients’ obligations set out in the remainder of this letter agreement in respect of such Confidential Information.
6. Announcements
Save as provided in paragraph 3, neither Party nor any of such Party’s Connected Persons will, without the other Party’s prior written consent, make or permit or solicit or assist any other person to make any announcement or disclosure of the discussions between the Parties concerning this letter agreement or any Transaction or of our interest in any Transaction.
7. Not an offer/part of contract
Each Party agrees with the other Party that this letter agreement, the decision to enter into discussions which may lead to any Transaction, and the supply of all information and documents, whether containing Confidential Information or otherwise, to the other Party or its Authorised Recipients do not constitute an offer to enter into any Transaction or form the basis of any representation in relation to any contract. Neither Party is under any obligation to accept, review or consider any proposal or offer which the other Party may submit, and either Party may end discussions without giving any reason for doing so and without incurring any liability to the other Party or its Authorised Recipients or Connected Persons. We acknowledge and agree that you make no representation or warranty to us as to the accuracy or completeness of the Confidential Information.
8. Duration
Each Party acknowledges and agrees that the undertakings set out in this letter agreement will survive completion of the negotiations between the Parties concerning any Transaction, and subsist for a period from the date of this letter agreement until the second (2nd) anniversary of the date hereof.
9. Severability of provisions
If any term of this letter agreement is or becomes invalid or unenforceable, it shall be deemed to be severed from this letter agreement and replaced with one having an effect as close as possible to the deficient provision. The remaining terms of this letter agreement will continue in full force.
10. Rights of Third Parties
No person who is not a Party to this letter agreement shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
11. Remedies; Waivers
No delay or omission in exercising any right or remedy under this letter agreement will operate as a waiver, nor shall any single or partial exercise preclude any further exercise of any other right or remedy under this letter agreement or otherwise.
12. Communications
All communications in relation to this letter agreement shall be in writing and shall be sent (i) by internationally recognized courier service to the address of the addressee or (ii) by e-mail to the e-mail number of the addressee, in each case which is specified in this paragraph 12 in relation to the Party to whom the notice is addressed.
13. Assignment
Neither Party may assign this letter agreement or any of its rights or obligations hereunder without the prior written consent of the other Party.
14. No pass-through liability
For the avoidance of doubt, each of Buyer and Vendor is solely liable for its obligations set forth in or arising under this Agreement, and no direct or indirect legal or beneficial owner of Buyer or Vendor shall have any liability in respect of this letter agreement except as may be expressly so provided herein.
15. Governing law
This letter agreement and any non-contractual obligations arising in connection herewith shall be governed by and construed in accordance with English law and the Parties irrevocably agree that the courts of England are to have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement or its interpretation. This letter agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument.
